Social partnership in non-standard employment

Both in the world and in Russia, the share of non-standard forms of employment is increasing. Most states, including Russia, strive to maintain stable employment, as well as to prevent the deterioration of the situation of workers in both standard and non-standard areas of employment.

Standard employment means full-time employment, an indefinite employment contract, under the direction of the employer. In most countries, including Russia, such standard employment is enshrined in law.

All other forms of employment that do not fall within the definition of standard employment are considered “non-standard forms of employment”⁠ . Non-standard forms of employment also include platform employment (for example, Yandex Taxi).

Thus, a non-standard form of employment is understood as labor activity, during the implementation of which socially useful consequences occur and public benefits are created, but at the same time, the subjects of this type of labor activity are not in labor relations on the basis of an employment contract concluded on the basis of Labor Code.

Non-standard forms of employment are not regulated and not protected by labor legislation, and therefore the main problem of non-standard forms of employment is the absence or lack of legal regulation of such relations, legal and socio-economic guarantees for workers.

To achieve these goals, legal regulation of non-standard forms of employment is necessary, including a legislative definition of this concept.

In recent years, the International Labor Organization (hereinafter also referred to as the ILO) has also been concerned about the problems of non-standard forms of employment.

Thus, in February 2015, the International Labor Organization held a tripartite meeting of experts on non-standard forms of employment, during which experts appointed after consultations with governments, associations of employers and workers from different countries met, and problems in the field of organizing decent work related to the spread of non-standard forms of employment met.

Following the meeting, experts called on participating countries, employers' and workers' associations to develop policy measures to solve problems associated with the use of non-standard forms of employment, so that workers, regardless of their form of employment, have decent working conditions. To achieve this, governments and social partners must work together to implement measures to ensure adequate working conditions, support an effective transition from precarious to standard forms of employment in the labor market, promote equality and non-discrimination, provide social security guarantees for all workers, ensure safe workplaces, freedom of association and collective bargaining rights, improve the effectiveness of labor inspections, address precarious forms of employment and protect fundamental rights at work.

According to ILO specialists, to regulate non-standard forms of employment it is necessary to use collective bargaining as the main form of social partnership. It is noted that the right to participate in collective bargaining must be extended to include workers in non-standard forms of employment who do not work under an employment contract⁠ .

This position of the ILO is fully supported by the Russian Federation. Improving the system of social partnership, strengthening social dialogue at all levels, developing the potential of employers' organizations and trade unions in accordance with the Cooperation Program between the Russian Federation and the International Labor Organization for 2017-2020 continue to be the key tasks of the International Labor Organization, the Government of the Russian Federation and social partners, the implementation of which consists, inter alia, in strengthening the role of collective bargaining on issues of regulating social and labor relations, expanding the coverage of workers by membership in trade unions; developing the practice of employee representation in social dialogue with trade union organizations in traditional and new sectors of the economy (including non-standard forms of employment); promoting the formation of employers' associations and their active participation in social dialogue; further involvement of the parties social partnership in solving the most important problems of the social and labor sphere and related economic relations.⁠

According to the Cooperation Program between the Russian Federation and the International Labor Organization for 2017–2020, the Government of the Russian Federation committed itself to supporting the International Labour Organization’s principal policy provisions and practical approaches⁠ .

In accordance with this Program and the proposals of the ILO, the Federation of Independent Trade Unions of Russia (hereinafter also referred to as FNPR) approved a number of resolutions on non-standard forms of employment at the General Council of the FNPR, including:

• the right to join trade unions of workers of any form of employment;
• the right to collective bargaining within the framework of social partnership for all forms of employment;
• the right to conclude collective bargaining agreements in any form of employment;
• the right to state guarantees for workers of any form of employment;
• extend social partnership to those working in non-standard forms of employment⁠ .

1. New paradigm of labor relations

To answer the question of whether insolvency practitioners are subjects of labor and/or social-labor relations, it is necessary first of all to answer the following questions:

• what is labor?
• What is labor and professional activity?
• Who is an employee?
• What is labor relations?
• What is employment?

Labor and precarious work

The Great Soviet Encyclopedia understands labor as the purposeful activity of a person, during which he, with the help of tools of labor, influences nature and uses it to create use values ​​necessary to satisfy needs. Considered in this general form, the work is, as K. wrote.

Marx, “...an eternal natural condition of human life, and therefore it is not dependent on any form of this life, but, on the contrary, is equally common to all its social forms.”

Wikipedia defines work as expedient, conscious human activity aimed at meeting the needs of the individual and society.

In the process of this activity, a person, with the help of tools, masters, changes and adapts natural objects to his goals, uses the mechanical, physical and chemical properties of natural objects and phenomena and forces them to mutually influence each other to achieve a predetermined goal.

As an economic category, labor is one of the factors of production.

In historical materialism, labor is seen as the fundamental basis of social life. The main criterion for the development of labor is not so much the result as the tools of labor. They objectify (express in objective material form) the level of development of material production, the level of social division of labor.

In addition, in the labor process, production relations arise, the nature of which can also have a significant impact on the labor itself.

Thus, labor is understood as any human activity aimed at satisfying personal or social needs by creating material or intangible benefits. In this sense, work differs from rest, sleep, and play activities.

Standard and non-standard employment

2.2.The concept of labor and professional activity

Labor activity means any activity carried out by persons of any gender and age for the purpose of producing goods or providing services for use by others or for their own use (clause 1.1 of the Official Statistical Methodology for the Formation of a System of Indicators of Labor Activity, Employment and Labor Underutilization, recommended by the 19th International Conference of Labor Statisticians, approved by order Federal State Statistics Service dated December 31, 2015 No. 680).

Clause 1 of the appendix to the order of the Ministry of Labor of Russia dated December 12, 2016 No. 726n “On approval of the regulation on the development of names of qualifications and qualification requirements for compliance with which an independent assessment of qualifications is carried out” indicates that a type of professional is a certain type of labor activity that requires qualifications for workers or persons applying for its implementation.

Thus, it is necessary to distinguish between labor activity and professional activity based on the fact that the latter is one of the types of labor activity and requires qualifications as a degree of professional preparedness for any type of work.

Qualification (from the Latin qualis - which in quality and facio - I do) refers to the degree and type of professional training of an employee, the presence of knowledge, skills and abilities necessary to perform a certain job.

Qualifications are assessed in the manner specified Federal law dated July 3, 2016 No. 238-FZ “On independent assessment of qualifications.”

2.3. The concept of “employee” in the narrow and broad sense

Based on the definitions of labor and work activity, we can conclude that a worker in the broad sense of the word must be understood as any person engaged in labor activity for the purpose of producing goods or providing services for use by others. Persons carrying out labor activities in their own interests, for personal consumption, are not employees.

Article 3 Federal Law No. 10-FZ of January 12, 1996 (as amended on December 8, 2020) “On trade unions, their rights and guarantees of activity” defines an employee as an individual working in an organization on the basis of an employment agreement (contract), a person engaged in individual entrepreneurial activity, a person studying in a professional educational organization or an educational organization of higher education.

Thus, the Law on Trade Unions interprets the concept of “employee” in the broadest sense of the word, including, among other things: the unemployed, students, persons engaged in entrepreneurial activities, as well as any citizens related by common professional interests by the nature of their activity.

Such a broad understanding of an employee corresponds to the concept of an employee performing labor activity as a professional.

Labor Code Russia, in turn, in Article 20 defines an employee as an individual who has entered into an employment relationship with an employer.

Thus, Labor Code interprets the concept of “employee” in a narrow sense: as a person who has entered into an employment contract and is in an employment relationship with a specific employer.

So in a sense Labor Code are not employees: students, unemployed, pensioners, entrepreneurs, lawyers, insolvency practitioners, self-employed, notaries, judges, deputies, the President of Russia, governors and any other persons who have not concluded an employment contract and are not in an employment relationship with a specific employer.

Thus, the scope of the Trade Union Law is much wider than Labor Code.

Based on the fact that in legislation the concept of “employee” is used in different senses (narrow and broad), when using this term it is necessary to clarify in what sense it is used in each specific case.

2.4. Labor relations in the narrow and broad sense

Similar to the interpretation of the term “employee,” it is necessary to distinguish between “labor relations” in a narrow or broad sense.

By labor relations in the narrow sense it is necessary to understand the relations that arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with Labor Code(article 16 Labor Code).

Labor relations in a broad sense mediate any labor activity carried out by persons of any gender and age for the purpose of producing goods or providing services for use by others.

Labor relations in a broad sense mediate the relations that arise when using the labor of individual entrepreneurs, lawyers, notaries, insolvency practitioners, judges and any other persons not working under an employment contract concluded in accordance with Labor Code.

This division of labor relations seems quite logically justified, since all persons who do not work under an employment contract (lawyers, notaries, insolvency practitioners, judges and others) undoubtedly work, the fact of their labor (professional) activity does not raise any doubts.

Thus, similar to the concept of “employee”, when using the term “labor relations” it is necessary to clearly understand in what sense this term is used in each specific case: narrow or broad.

It should be noted that the Insolvency Law refers to the activities of the insolvency practitioner as professional (work in the broad sense of the word, since any professional activity is labor).

The situation of liberal professions

So, clause 1 art. 20 The Bankruptcy Law states that the bankruptcy manager is a subject of professional activity and carries out professional activity regulated by this Federal Law.

Forms of precarious employment

In accordance with Art. 1 of the Law “On Employment of the Population in the Russian Federation”, employment is the activity of citizens related to the satisfaction of personal and social needs, which does not contradict the legislation of the Russian Federation and, as a rule, brings them earnings, labor income (hereinafter referred to as earnings).

Citizens have the exclusive right to control their abilities for productive, creative work. Forced labor in any form is not permitted unless otherwise provided by law.

Further, Article 2 of the Employment Law defines the types of employed citizens:

• working under an employment contract, including those performing work for remuneration on a full-time or part-time basis, as well as those having other paid work (service), including seasonal, temporary work, with the exception of public works (except for citizens participating in public works and specified in paragraph 3 of Article 4 of this Law) and exercising the powers of members of election commissions, referendum commissions with voting rights not on a permanent (regular) basis;
• registered in the prescribed manner as individual entrepreneurs, as well as notaries engaged in private practice, lawyers who have established law offices, and other persons whose professional activities in accordance with federal laws are subject to state registration and (or) licensing (hereinafter referred to as individual entrepreneurs);
• those employed in auxiliary industries and selling products under contracts;
• those performing work under civil contracts, the subjects of which are the performance of work and the provision of services, copyright agreements, as well as members of production cooperatives (artels);
• elected, appointed or confirmed to a paid position;
• undergoing military service, alternative civilian service, as well as service in internal affairs bodies, the State Fire Service, institutions and bodies of the penal system, compulsory enforcement bodies of the Russian Federation;
• full-time students in organizations engaged in educational activities, including training in the direction of the state employment service (hereinafter referred to as the employment service bodies);
• temporarily absent from the workplace due to disability, vacation, retraining, advanced training, suspension of production caused by a strike, conscription for military training, involvement in activities related to preparation for military service (alternative civil service), performance of other government duties or other valid reasons;
• who are the founders (participants) of organizations, with the exception of the founders (participants) of non-profit organizations, the organizational and legal form of which does not imply the right of the founders (participants) to receive income from the activities of these organizations, including members of homeowners' associations, as well as members of housing, housing construction, garage cooperatives and other specialized consumer cooperatives created to meet the needs of citizens who do not receive income from their activities;
• who are members of a peasant (farm) enterprise.

As we see, the Employment Law defines employees as any persons engaged in labor activity in the broad sense of the word, therefore it must be recognized that the scope of the Employment Law (as well as the Trade Union Law) is much wider than Labor Code.

To summarize, we can conclude that insolvency practitioners are undoubtedly subjects of labor relations in the broad sense of the word, since they:

• carry out labor (professional) activities (work);
• are employees in the broad sense of the word;
• are busy citizens.

At the same time, it should be noted that according to the current legislation, insolvency practitioners are not employees in the sense Labor Code(in the narrow sense of the word).

It should be noted that back in 2009, the Constitutional Court of Russia expressed an important legal position regarding workers’ choice of form of employment:

"According to Constitution of the Russian Federation labor is free; Everyone has the right to freely use their ability to work, choose their type of activity and profession (Article 37, part 1).

Freedom of labor is manifested, in particular, in the ability of a citizen to freely dispose of his abilities to work, i.e. choose both the type of occupation and the procedure for formalizing the relevant relationships and determine whether he will carry out entrepreneurial activities, enter the public service, enter into an employment contract, or prefer to perform work (provide services) on the basis of a civil law contract.

If a contractual legal form is chosen, he has the right, by agreement with the person providing the work, to settle on the model of their interaction that will meet the interests of both of them, and determine what kind of contract will be concluded - labor or civil law” (clause 2.1. Definitions Constitutional Court of the Russian Federation dated May 19, 2009 No. 597-O-O “On the refusal to accept for consideration the complaint of citizen Ravinskaya Larisa Vadimovna about the violation of her constitutional rights Articles 11, 15, 16, 22 And 64 Labor Code of the Russian Federation").

Clause 2.2. said Definitions The Constitutional Court of the Russian Federation dated May 19, 2009 No. 597-O-O established cases when a citizen who is not an individual entrepreneur is not endowed with the constitutional rights provided for part 3 of article 37 Constitution of the Russian Federation: when such a person has entered into a civil contract for the performance of work or the provision of services.

In accordance with paragraph 2.1 of the said definition of the Constitutional Court of the Russian Federation dated May 19, 2009 No. 587-O-O, it is stated that if a contractual legal form is chosen, a citizen has the right, by agreement with the person providing the work, to settle on the model of their interaction that will meet the interests of both of them, and determine what kind of contract will be concluded - labor or civil law.

That is, the right to choose the civil form of the contract and the refusal of guarantees provided part 3 of article 37 The Constitution of the Russian Federation belongs to the citizen himself and cannot be imposed on him. Moreover, if a civil law form of contract is imposed, the court must protect the interests of the working citizen.

New paradigm of labor relations

Despite the fact that you can work and work not only on the basis of an employment contract, but also a civil law contract (for example, part 1 of article 723 And part 2 of article 1086 Civil Code of the Russian Federation), as well as without a contract, in Russia for a long time regulation was based on the paradigm that an employee and an employer can only be in an employment relationship, which means that social partnership is possible only where there is an employment relationship.

At present, such a scientific paradigm should be recognized as outdated; it is being replaced by another, the essence of which is that an employee in the broad sense is the one who works, and the employer in the broad sense is the one who gives him work.

Accordingly, social partnership and collective contractual regulation must be extended to all forms of employment, regardless of whether the employee works on the basis of an employment contract, a civil contract, or no contract at all.

This issue is especially relevant for appointed lawyers and insolvency practitioners who work on the basis of a decision of a public authority without an agreement.

The lack of legalized relations between insolvency practitioners (as employees) and the state (as an employer) is the main reason for the precarization of their work, which naturally led to a decrease in the efficiency of their activities, an increase in the corruption component, and at the same time the absence of social and legal guarantees for insolvency practitioners.

The quality of their work is constantly criticized: insolvency practitioners have essentially turned into liquidators. Social partnership legitimizes such relationships, eliminates the main cause of labor precarization, which, consequently, increases the efficiency of professional activity.

1. What is social partnership and why do insolvency practitioners need it?

According to Article 75.1 of the Constitution in the Russian Federation, social partnership, economic, political and social solidarity are guaranteed.

IN conclusion Constitutional Court of the Russian Federation dated March 16, 2020 No. 1-Z “On compliance with the provisions of Chapters 1, 2 and 9 Constitution of the Russian Federation provisions of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation “On improving the regulation of certain issues of the organization and functioning of public power”, as well as on compliance Constitution of the Russian Federation the procedure for the entry into force of Article 1 of this Law in connection with the request of the President of the Russian Federation" the Constitutional Court indicated the following:

• "Indication in the new Article 75.1 The Constitution of the Russian Federation states that in the Russian Federation conditions are created for the sustainable economic growth of the country and the improvement of the well-being of citizens, for mutual trust of the state and society, the protection of the dignity of citizens and respect for working people is guaranteed, the balance of the rights and responsibilities of a citizen is ensured, social partnership, economic, political and social solidarity is aimed at achieving in state policy, in legal regulation and law enforcement practice the optimal balance of individual freedom and social solidarity. This also specifies the provisions on the social state and is consistent with the principle of the inadmissibility of violating the rights and freedoms of others when exercising their rights and freedoms ( article 7; article 17, part 3, Constitution of the Russian Federation)".

Article 23 The Labor Code of Russia defines social partnership in the sphere of labor as a system of relationships between employees (employee representatives), employers (employers' representatives), state authorities, local governments, aimed at ensuring coordination of the interests of employees and employers on the regulation of labor relations and other directly related relations.

Thus, Labor Code The Russian Federation regulates only part of the social partnership relations: namely, social partnership in the field of labor relations between employees, employers, and authorities, while the Constitution guarantees social partnership in the broad sense of the word.

The role of collective bargaining

In this regard, a logical question arises: are there social partnership relations that are not regulated by Labor legislation?

There are a large number of professions whose work is not regulated Labor Code Russian Federation: taxi drivers, notaries, lawyers, insolvency practitioners, entrepreneurs and others. Do they have the right to social partnership?

It seems that the answer to this question should be affirmative for the following reasons:

• firstly, as stated above, Article 75.1 The Constitution of the Russian Federation, in contrast to the Labor Code of the Russian Federation, guarantees social partnership in the broadest sense, regardless of the framework within which relations it arises: labor, civil or other.
• secondly, the Law “On Trade Unions, Their Rights and Guarantees of Activities” defines a trade union as a voluntary public association of citizens bound by common production and professional interests in the nature of their activities, created for the purpose of representing and protecting their social and labor rights and interests, regardless of whether a person works on the basis of an employment, civil law contract or without a contract at all. Persons united by a common profession, and not by labor or other relations, have the right to form a trade union.
• thirdly, the right to association, including in trade unions, is guaranteed by Article 30 of the Russian Constitution:

“Everyone has the right to association, including the right to create trade unions to protect their interests. Freedom of activity of public associations is guaranteed.”

• fourthly, the right to conduct collective bargaining and conclude collective agreements (agreements) is enshrined in Art. 13 of the Law on Trade Unions. Taking into account the fact that all trade unions enjoy equal rights (Clause 1 of Article 2 of the Law), a situation in which classic trade unions of workers working under an employment contract would have the right to conduct collective negotiations and conclude collective agreements, but trade unions of workers in non-standard forms of employment (not working under an employment contract) would not, is unacceptable.

In addition, the constitutional right to organize into trade unions is guaranteed by Chapter 2 of the Russian Constitution and is an inalienable human right, while labor legislation is a subject of joint jurisdiction of the Russian Federation and its constituent entities and regulates only social partnership in the field of labor relations (Art. 30, 72 Constitution of the Russian Federation, Art. 23 Labor Code of the Russian Federation).

One of the most important forms of social partnership is the conclusion of collective agreements and agreements, which opens up great opportunities for self-regulation in the professional activities of insolvency practitioners. Thus, the Industry Agreement in the field of insolvency (bankruptcy) and financial recovery for 2020-2021 is currently in force, which is considered by judicial practice as a normative legal act regulating the professional activities of insolvency practitioners.

Thus, the mechanism of social partnership is the most important tool for self-regulation of the industry through the conclusion of collective agreements and agreements that have the force of normative legal acts.

1. Problems of participation of the All-Russian Trade Union of insolvency practitioners in social partnership

Article 23 The Labor Code defines social partnership in the sphere of labor as a system of relationships between employees (employee representatives), employers (employers' representatives), government bodies, local governments, aimed at ensuring coordination of the interests of workers and employers on the regulation of labor relations and other relations directly related to them.

Article 27 The Labor Code defines collective bargaining for the preparation of draft collective agreements, agreements and the conclusion of collective agreements, agreements as the main form of social partnership.

This raises an important question: do sectoral agreements concluded by trade unions of workers in non-standard forms of employment apply to the provisions of Section 2? Labor Code“Social partnership in the sphere of labor”, which regulate in detail, including: the concept of social partnership, its principles, parties, levels, forms, types of collective agreements and agreements, their content, execution procedure and many other issues?

It seems that the answer to this question should be affirmative for the following reasons:

• Art. 75.1 of the Constitution guarantees social partnership in the broad sense of the word, and not only in labor relations arising on the basis of the Labor Code of the Russian Federation;
• in light of the above ILO recommendations, as well as the obligations of the Russian Federation, the positions of the FNPR, the right of trade unions uniting workers in non-standard forms of employment (not working under an employment contract), for example, such as lawyers or insolvency practitioners, seems unconditional to participate in social partnerships and to conclude collective bargaining agreements;
• since labor law regulates in detail the legal basis of social partnership in the field of labor relations between employees and employers, there are no obstacles to applying the provisions of section 2 Labor Code to non-standard forms of employment by analogy;
• in accordance with the last paragraph of clause 7.10. “The General Agreement between all-Russian associations of trade unions, all-Russian associations of employers and the government of the Russian Federation for 2021 - 2023” the parties agreed to extend the mechanisms of social partnership in the field of labor to all workers, regardless of their form of employment.

This practice will undoubtedly make it possible to more effectively achieve the goals proclaimed by the IOC and supported by Russia to combat labor precarization, strengthen the role of collective bargaining, and develop the practice of worker representation in social dialogue in traditional and new sectors of the economy. The achievements of labor law can and should certainly be used in regulating non-standard forms of employment.

At the same time, it should be noted that labor legislation on social partnership cannot be applied directly to the work of insolvency practitioners until appropriate changes are made to the legislation; however, this does not mean that it is fundamentally impossible to apply the norms of Section 2 to ORAPU Labor Code on social partnership for the reasons stated above.

In light of the above, in our opinion, it is necessary to fundamentally distinguish between the possibility/impossibility of applying labor legislation:

• directly to insolvency practitioners and their work;
• to ORPAU and its relations with social partners and government authorities.

The industry agreement in the field of insolvency (bankruptcy) and financial recovery for 2020–2021 was concluded by the All-Russian Trade Union of Insolvency Practitioners and the Russian Anti-Crisis Union⁠ .

The currently emerging judicial practice adheres to ambiguous approaches regarding social partnership of ORPAU and its right to conclude collective bargaining agreements.

For example, the Decree of the Supreme Court of the Russian Federation (hereinafter also referred to as the Supreme Court) dated June 19, 2020 No. 302-ES20-8871 in case No. A33-10989/2019 established that the courts, when approving an insolvency practitioner, were reasonably guided not only by bankruptcy legislation, but also Articles 2, 5, 15 Federal Law of January 12, 1996 No. 10-FZ “On trade unions, their rights and guarantees of activity.”

With this ruling, the Supreme Court recognized as justified the following conclusions of the Arbitration Court of the East Siberian District, made in the decision dated 03/05/2020 in case No. A33-10989/2019:

"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.”

The Supreme Court indicated in its ruling No. 307-ES20-10788 dated August 20, 2020 in case No. A56-124198/2019 that labor legislation regarding the protection of collective rights of workers applies to ORPAU. In this ruling, the Supreme Court expressly noted that the rules Labor Code apply to the relations of ORPAUs with their social partners:

“... the circumstances laid down by the plaintiff as the basis for his claims indicate the existence of a collective labor dispute; the agreement announced by the trade union is not of a civil nature; The procedure for resolving collective labor disputes is regulated by labor legislation...”

Necessary changes

In addition, some courts recognize the Industry Agreement in the field of insolvency (bankruptcy) and financial recovery for 2020-2022 as a regulatory legal act.

Thus, the Arbitration Court of the North Caucasus District resolution dated 06/11/2020 in case No. A53-8303/2019 recognized the following conclusions of the Fifteenth Arbitration Court of Appeal, made in the decision dated 02/21/2020 in case No. A53-8303/2019, as based on a correct systematic assessment of the applicable rules of substantive law:

"According to Article 45 of the Labor Code, 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."

​​​​​​The same conclusions were made by other arbitration courts. For example, the Tenth Arbitration Court of Appeal in resolution dated 09.09.2020 in case No. A41-86346/2019 and the Arbitration Court of the city of St. Petersburg and the Leningrad Region in a decision dated 05.08.2020 in case No. A56-137241/2019.

The Ninth Arbitration Court of Appeal in resolution dated 04/22/2021 in case No. A40-48381/2020, when considering the validity of recognizing the Industry Agreement as a regulatory legal act, the following was established:

"According to point 2 Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 No. 50 “On the practice of courts considering cases challenging normative legal acts and acts containing clarifications of legislation and having normative properties”, the Agreement is a normative legal act issued at the federal level of social partnership, since in its content it is mandatory for an indefinite circle of persons and is designed for repeated application.

The industry agreement in the field of insolvency (bankruptcy) and financial recovery for 2020-2022 was concluded on the basis of clause 1 of Art. 30, art. 37, 75.1 of the Russian Constitution, Art. 11, 45 Labor Code, Art. 2, 15 of the Law on Trade Unions.

The industry 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.”

Similar conclusions are contained in the Resolution of the Tenth Arbitration Court of Appeal dated May 28, 2021 in case No. A41-54644/20.

However, judicial practice on the application of the Industry Agreement in the field of insolvency (bankruptcy) and financial recovery for 2020-2021 is contradictory.

There is also judicial practice that does not recognize the Industry Agreement as a normative legal act regulating the field of insolvency and the professional activities of insolvency practitioners.

Within the framework of this approach, courts base conclusions, among other things, on the fact that insolvency practitioners are not employees and are not subject to the rules Labor Code, and ORPAU does not have the right to regulate the professional activities of insolvency practitioners.

1. What to do?

It is necessary to legally extend social partnership to those working in non-standard forms of employment, including those employed on the basis of a decision of a government agency (lawyers and insolvency practitioners), as well as through the mediation of digital platforms, the self-employed, migrant workers and other unprotected categories of workers.

The Federal Law “On Trade Unions, Their Rights and Guarantees of Activities” (hereinafter referred to as the Law on Trade Unions) was adopted in 1996 - the period of validity Code labor laws of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), according to which an employee could be a party not only to an employment contract (Article 15 of the Labor Code of the Russian Federation), but also to other labor contracts (Article 5 of the Labor Code of the Russian Federation). In accordance with Article 2 of the Labor Code of the Russian Federation, the term “employee” refers to a person exercising his constitutional right to work (Article 37 Constitution of the Russian Federation).

After accepting the second part Civil Code RF and Labor Code In the Russian Federation, labor contracts that are not employment contracts were classified as civil contracts, the parties to which are the “performer”, “contractor”, etc., and the term “employee” was narrowed to a party to the employment contract only.

At the same time, the provisions of the Trade Union Law continue to proceed from the fact that an employee is any worker.

Thus, Labor Code in fact, he “usurped” the concepts of “employee” and “labor relations,” which began to be understood exclusively as persons working under an employment contract concluded under the Labor Code of the Russian Federation.

This situation has led to a violation of the rights of workers who do not work under an employment contract, to the precarization of their labor, and therefore there is currently a need to bring the terminology of the Trade Union Law in line with the terminology of the Labor and Civil codes, while maintaining the constitutional right of everyone to join a trade union, regardless of the form of their employment, as well as the equality of rights of all trade unions, provided for in paragraph 1 of Article 2 of the Law on Trade Unions, including the right to social partnership and the conclusion of collective bargaining agreements.

As follows from the provisions of paragraph 1 of Article 1 of the Law on Trade Unions, all workers have social and labor rights and interests, that is, rights and interests arising in social and labor relations, in the regulation of which trade unions take part through participation in social partnerships and collective agreements, agreements (Article 40 And 45 Labor Code of the Russian Federation).

Since in accordance with Labor Code RF trade unions are independent and equal subjects of labor law, it is necessary to provide that the provisions Labor Code The RF regulations governing the activities of trade unions apply to all trade unions, regardless of the form of employment of their members.

It is necessary to amend the Trade Union Law to provide for the possibility of applying the provisions Chapter II of the Labor Code of the Russian Federation to all trade unions, regardless of the form of employment, and also to exclude provisions that prohibit workers from joining a trade union if they do not have labor relations.

In accordance with the above, it is necessary:

1. Exclude from Article 3 of the Law on Trade Unions the concepts of “employee” and “employer”, establishing that a member of a trade union can be a person engaged in labor activity (worker) or applying for it (temporarily not working, pensioner, student); define the concept of labor activity, as an activity based on personal labor, and professional activity, as a labor activity that requires qualifications.
2. Provide for the application of labor legislation regarding the regulation of social partnership in the sphere of labor to the activities of all trade unions; determine the features of such regulation, including social partners; define the concept of platform employment; provide for the need for information systems regulating social and labor relations to comply with the terms of collective agreements and agreements.

The proposed changes to the Trade Union Law are aimed at bringing the Trade Union Law into line with existing legislation, while maintaining the following principles related to the interdisciplinary nature of the Trade Union Law:

• All workers have the constitutional right to form trade unions, regardless of their form of employment,
• the rights of all trade unions are equal, regardless of the form of employment of their members,
• relations of all trade unions with state authorities and local governments are built on the basis of social partnership, as well as on the basis of a system of agreements,
• the rights of all trade unions to regulate social and labor relations and related economic relations through collective bargaining agreements are equal, regardless of the form of employment,
• constitutional rights guaranteed part 3 of article 37 All workers have the Constitution of the Russian Federation, regardless of their form of employment, and such rights are protected by trade unions.

FOOTNOTES

1. HSE study of non-standard employment ↩
2. Review of non-standard forms of employment; ILO Tripartite Meeting materials ↩
3. Letter of the Ministry of Labour of Russia dated December 10, 2019 No. 14-2/10/p-11214 ↩
4. Russia–ILO Cooperation Programme ↩
5. Resolution of the FNPR General Council; FNPR General Council decision ↩
6. Industry Agreement in the field of insolvency ↩