Unequal Wages: Discrimination or Employer's Right? Equal Responsibilities - Unequal Wages Equal Work Article

New edition Art. 22 of the Labor Code of the Russian Federation

The employer has the right:

conclude, modify and dissolve employment contracts with employees in the manner and on the conditions established by this Code, other federal laws;

collective bargaining and collective bargaining;

to encourage employees for conscientious effective work;

require employees to comply with job responsibilities and respectful attitude to the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees, compliance with the internal labor regulations;

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

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

create associations of employers in order to represent and protect their interests and join them;

create a works council (with the exception of employers - individuals who are not individual entrepreneurs) - an advisory body formed on a voluntary basis from among the employees of this employer, who, as a rule, have achievements in work, to prepare proposals for improving production activities, individual production processes , introduction new technology and new technologies, increasing labor productivity and qualifications of workers. The powers, composition, procedure for the work of the works council and its interaction with the employer are established by a local regulatory act. The powers of the works council cannot include issues the solution of which, in accordance with federal laws, is attributed to the exclusive competence of the management bodies of the organization, as well as issues of representation and protection of social and labor rights and interests of employees, the solution of which in accordance with this Code and other federal laws is assigned to the competence of trade unions, the relevant primary trade union organizations, and other representatives of workers. The employer is obliged to inform the works council about the results of the consideration of proposals received from the works council and about their implementation;

to exercise the rights granted to him by the legislation on special assessment working conditions.

The employer is obliged:

comply with labor laws and other regulatory legal acts containing norms labor law, local regulations, the terms of the collective agreement, agreements and labor contracts;

provide employees with work stipulated by the employment contract;

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

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

provide workers with equal pay for work of equal value;

pay in full the wages due to employees within the time frame established in accordance with this Code, the collective agreement, internal labor regulations, labor contracts;

conduct collective bargaining, as well as conclude a collective agreement in the manner prescribed by this Code;

provide workers' representatives with full and reliable information required for the conclusion of a collective agreement, agreement and control over their implementation;

to acquaint employees against signature with the adopted local regulations directly related to their work activities;

timely fulfill the orders of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising 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 the employees on the violations of labor legislation and other acts containing labor law norms, take measures to eliminate the violations identified and report on the measures taken to these bodies and representatives;

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

to provide for the household needs of employees related to the performance of their labor duties;

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

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

perform other duties provided for labor legislation, including legislation on the special assessment of working conditions, and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and labor contracts.

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

While Article 21 of the Labor Code of the Russian Federation has remained practically unchanged for a long time, Article 22 of the Labor Code by Federal Law No. 90-FZ has undergone significant adjustments.

In accordance with the current wording of this article, the employer is given the right to demand that employees respect not only the property of the employer, but also the property of third parties held by the employer for safekeeping (in use). In addition, the employer is obliged to familiarize employees, against signature, with the adopted local regulations directly related to their work activities.

Another commentary on Art. 22 of the Labor Code of the Russian Federation

1. The employer, as the subject of labor and directly related legal relations, acts in them as the bearer of certain rights and obligations, which, like the rights and obligations of the employee, are of a statutory and contractual nature. The statutory list of the rights and obligations of the employer, enshrined in the text of Art. 22, is of an imperative nature, the purpose of which is to establish the general boundaries of the employer's organizational and managerial power over its employees. Within the limits of this power, the employer, as the subject of relations on the organization of labor and labor management, is granted the following rights:

a) encourage employees for conscientious effective work (see Art. 191 of the Labor Code of the Russian Federation and a commentary to it);

b) require employees to fulfill their labor duties and to respect their property and the property of other employees;

c) to bring employees to disciplinary and material liability in the manner established 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 commentary to it);

d) adopt local regulations (see article 8 of the Labor Code of the Russian Federation and a commentary to it).

As the subject of employment and labor relations, the employer has the right to conclude, amend and terminate employment 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 noted that these rights of the employer do not give him freedom to conclude, amend and terminate employment contracts with employees. On the contrary, the legislation actually limits this freedom, in particular, by establishing prohibitions for the employer on the unjustified refusal of the employed person to conclude an employment contract (see Article 64 of the Labor Code of the Russian Federation and the commentary to it) and the requirement from the employee to perform work not stipulated by the employment contract ( see article 60 of the Labor Code of the Russian Federation and the commentary to it). In addition, transfer to another permanent job can be carried out by the employer only with the consent of the employee (see article 72 of the Labor Code of the Russian Federation and the commentary to it), and termination of the employment contract with the employee on the initiative of the employer can take place only on the grounds provided for by law ().

As the subject of social partnership relations, the employer has the right to conduct collective bargaining and conclude collective agreements, and to represent and protect his interests - the right to create associations of employers and join them.

The total number of statutory rights granted to the employer is noticeably less than the rights given to the employee (see article 21 of the Labor Code of the Russian Federation and the commentary to it). This is explained by the fact that the employer, as a rule, has sufficient economic, organizational and managerial capabilities to independently satisfy his interests in relations with employees and, therefore, does not feel a special need to formalize his rights with the help of the law. As for the workers, they just need the statutory labor rights guaranteed by the law, which to a certain extent protect them from abuse by the employer of their economic, organizational and managerial power.

2. In turn, the list of statutory duties of the employer is wider than the list of duties of the employee. This is explained by the fact that most of the employer's obligations are the reverse side of the employee's rights. In this sense, the purpose of the employer's duties is to provide employees with additional guarantees for the implementation of their statutory rights.

Failure by employers to fulfill their obligations entails criminal, administrative, material and disciplinary liability for them or their representatives (see Articles 234 - 237, 419 of the Labor Code of the Russian Federation and the commentary to them).

Labor Code, N 197-FZ | Art. 22 of the Labor Code of the Russian Federation

Article 22 of the Labor Code of the Russian Federation. Basic rights and obligations of the employer (current version)

The employer has the right:

conclude, modify and terminate employment contracts with employees in the manner and on the terms established by this Code and other federal laws;

collective bargaining and collective bargaining;

to encourage employees for conscientious effective work;

require employees to fulfill their labor duties and respect the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees, to comply with the internal labor regulations;

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

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

create associations of employers in order to represent and protect their interests and join them;

create a works council (with the exception of employers - individuals who are not individual entrepreneurs) - an advisory body formed on a voluntary basis from among the employees of this employer, who, as a rule, have achievements in work, to prepare proposals for improving production activities, individual production processes , the introduction of new equipment and new technologies, increasing labor productivity and qualifications of workers. The powers, composition, procedure for the work of the works council and its interaction with the employer are established by a local regulatory act. The powers of the works council cannot include issues the solution of which, in accordance with federal laws, is attributed to the exclusive competence of the management bodies of the organization, as well as issues of representation and protection of social and labor rights and interests of employees, the solution of which in accordance with this Code and other federal laws is assigned to the competence of trade unions, the relevant primary trade union organizations, and other representatives of workers. The employer is obliged to inform the works council about the results of consideration of proposals received from the works council and about their implementation;

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

The employer is obliged:

comply with labor laws and other regulatory legal acts containing labor law norms, local regulations, collective bargaining agreements, agreements and labor contracts;

provide employees with work stipulated by the employment contract;

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

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

provide workers with equal pay for work of equal value;

pay in full the wages due to employees within the time frame established in accordance with this Code, the collective agreement, internal labor regulations, labor contracts;

conduct collective bargaining, as well as conclude a collective agreement in the manner prescribed by this Code;

provide employees' representatives with complete and reliable information necessary for concluding a collective agreement, agreement and monitoring their implementation;

to acquaint employees against signature with the adopted local regulations directly related to their work activities;

timely fulfill the orders of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established area of activity, pay fines imposed for violations of labor legislation and other normative legal acts containing labor law norms;

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

to provide for the household needs of employees related to the performance of their labor duties;

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

fulfill other obligations stipulated by labor legislation, including legislation on the special assessment of working conditions, and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations and labor contracts.

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Commentary on Art. 22 of the Labor Code of the Russian Federation

1. An employment contract is an agreement concluded between two parties: an employee and an employer. Reflecting the bilateral nature of the employment contract, the Code provides not only the basic rights and obligations of the employee, but also the basic rights and obligations of the employer. In the Labor Code, only the basic labor rights and obligations of the employee were formulated.

The commented article enumerating the basic rights of the employer begins with his right to conclude, amend and terminate employment contracts with employees. This right is exercised in the manner and on the grounds specified in the Code and other federal laws. General order conclusion, amendment and termination of an employment contract on the initiative of the employer is provided for in the Code, the specifics of this procedure, as well as additional grounds for termination of the employment contract are specified in federal laws. So, the specifics of concluding an employment contract with citizens entering the state civil service are provided for in the Law on State civil service... It should be borne in mind that this Law uses the term “service contract” instead of the term “employment contract”. The Education Law specifies the specifics of concluding and terminating an employment contract with employees of an educational organization.

2. The legal equality of the parties when concluding an employment contract also applies to collective bargaining and the conclusion of a collective agreement. The employer, like the employees, has the right to come up with a proposal to start collective bargaining, and the other party - the workers' representatives - is obliged to enter into negotiations within seven days. In practice, in most cases, collective bargaining is initiated by workers' representatives.

The concluded collective agreement is signed by its parties, i.e. representatives of employers and employees. These provisions are summarized in the commented article by including the right to enter into collective bargaining and to conclude a collective agreement among the basic rights of the employer.

Federal Law of 07.05.2013 N 95-FZ expanded the powers of employers. They have the right (with the exception of employers who are individuals who are not individual entrepreneurs) to create works councils. The main goal of the works councils is to attract workers with achievements in labor to more active participation in the preparation of proposals for improving the efficiency of production activities. While orienting employers to create works councils, the legislator at the same time established the limits of their powers: they are not entitled to represent and protect the interests of employees, which is entrusted to trade unions and other representatives of employees, as well as to resolve issues that are the exclusive competence of the organization's management bodies, for example, hiring, structural reorganization of production.

It is advisable to expand the powers of the works councils and give their proposals more legal force.

3. Article 22 is closely related to Art. 21 TC. With the rights of an employee provided for in art. 21 of the Labor Code, correspond to the relevant obligations of the employer, enshrined in Art. 22, and vice versa, the duties of the employee correspond to the right of the employer to demand their fulfillment. So, Art. 21 of the Labor Code establishes the obligation of the employee to observe labor discipline, and Art. 22 - the right of the employer to demand that the employee perform his job duties. If these obligations are fulfilled in good faith, the employer has the right to encourage employees, and if labor discipline is violated, to bring them to disciplinary responsibility.

4. The basic rights and obligations of the employer, formulated in art. 22, are specified in other regulatory legal acts, as well as in labor contracts. They reflect the empowerment and responsibility of the employer in a market economy.

The legislator, while reducing the scope of centralized regulation of labor issues, simultaneously expands the contractual nature of the establishment of working conditions. One of the basic rights of an employer is to adopt, within the limits of his authority, local normative legal acts on labor, which are binding on employees who have entered into labor contracts with him. This right does not belong only to employers - individuals who enter into employment contracts for personal service and assistance with housekeeping.

5. The employer's right to create and join employers' associations in order to represent and protect their interests is important for social partnership, concluding agreements with authorized representatives of employees at the federal, sectoral, regional and territorial levels.

According to the Law on Associations of Employers, an association of employers has the right to:

To form an agreed position of the members of the association of employers on the regulation of social and labor relations and related economic relations and to defend it in relations with trade unions and their associations, state authorities, local authorities;

To agree with other associations of employers the position of the association of employers on the regulation of social and labor relations and related economic relations;

Defend the legitimate interests and protect the rights of its members in relations with trade unions and their associations, government bodies, local government bodies;

Initiate collective bargaining for the preparation, conclusion and amendment of agreements;

Judicial practice under article 22 of the Labor Code of the Russian Federation:

Decision of the Supreme Court: Determination N 53-KG16-17, Judicial Collegium for Civil Cases, cassation
Since the acquisition of an occupational disease is in direct causal connection with the defendant's violation of his obligations to create safe working conditions provided for in Articles 22, 212 of the Labor Code of the Russian Federation, according to V.V. Lyashenko, he has the right to receive compensation for moral damage caused by an occupational disease in production, on the basis of articles 2, 22, 212 and 237 of the Labor Code of the Russian Federation, as well as articles 151, 1064, 1079 and 1100 Civil Code Russian Federation in the amount of 1,500,000 rubles. and the cost of providing legal assistance in the amount of 16 200 rubles. The defendant's representative in court did not admit the claim ...
Decision of the Supreme Court: Determination N 53-KG16-18, Judicial Collegium for Civil Cases, cassation
Since the acquisition of an occupational disease is in direct causal connection with the defendant's violation of his obligations to create safe working conditions provided for in Articles 22, 212 of the Labor Code of the Russian Federation, according to M. Koshelev, he has the right to receive compensation for moral damage caused by an occupational disease at work. , on the basis of Articles 2, 22, 212 and 237 of the Labor Code of the Russian Federation, as well as Articles 151, 1064, 1079 and 1100 of the Civil Code of the Russian Federation in the amount of 1,500,000 rubles. and the cost of providing legal assistance in the amount of 16 200 rubles. The defendant's representative in court did not admit the claim ...
Decision of the Supreme Court: Determination N 74-KG17-13, Judicial Collegium for Civil Cases, cassation
According to the second paragraph of Part 1 of Article 22 of the Labor Code of the Russian Federation, the employer has the right to conclude, amend and terminate employment contracts with employees in the manner and on the terms established by this code, other federal laws ...

+ More ...

Often, workers consider themselves discriminated against in the amount of wages compared to colleagues. The employer can win the lawsuit with the help of well-built, justified and legitimate criteria for the difference in wages. Consider what are the ways to justify the differences in wages.

In the practice of labor relations between employees and employers, there are many problems with remuneration. In particular, situations when an employee considers himself financially underestimated and is ready to make a complaint to the employer, based on the fact that his colleague in the same position is paid more. Often employers, wishing to minimize such conflicts, make wages trade secret... But this only piques the curiosity of employees. Moreover, the employer cannot control the violation of such a prohibition.

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

Prohibition on Establishing Unjustified Difference in Pay

Analysis of the norms of the Labor Code of the Russian Federation

In Art. 3 of the Labor Code of the Russian Federation contains a prohibition on discrimination in the world of work: no one can be given preferences that are not related to business qualities employee.

According to "the employee has the right to timely and full payment of wages in accordance with his qualifications, the complexity of work, the quantity and quality of work performed." It contains the obligation of the employer "to provide employees with equal pay for work of equal value." Article 132 of the Labor Code of the Russian Federation once again declares these provisions. We also note that in accordance with Art. 57 of the Labor Code of the Russian Federation, wages are established in an employment contract between an employee and an employer, i.e. is of a contractual nature.

An analysis of these norms allows us to conclude that the employer is caught in a rather narrow legal corridor: the remuneration of each employee should be individual, "according to work," but fair, not violating the rights of other employees performing the same work. In reality, it is quite difficult to carry out a gradation of the value of an employee's business qualities, the quality of the work he performs. Slightly less complicated is the situation only with the amount of work performed, and then only in a situation where it can be measured in some "natural" indicators: in the number of parts made by the worker, made by the operator of calls, processed documents. Where work is more creative and less standardized, quantifying the quantity, let alone quality, is much more difficult. Typical examples are the work of a designer, programmer, lawyer, in which the individual abilities of an employee have a large component, i.e. his business qualities.

In addition, it should be remembered that it contains different concepts related to payment for labor: wage rate, salary and wages (). The tariff rate and salary are fixed per unit of time or calendar month, respectively. And the salary includes all payments: both a fixed salary (or tariff), and incentive, compensation payments (if they are established).

What Rostrud says

The greatest friction is caused by the situation when all wages are fixed and differ for employees of the same positions.

Let's give a position Federal Service on labor and employment, set out in the letter of 04/27/2011 N 1111-6-1 (hereinafter - the Letter of Rostrud). The officials noted that "when establishing salaries in the staffing table for positions of the same name, the salaries should be set the same, and the so-called" above-tariff part "of the salary may be different for different workers, including depending on qualifications, complexity of work, quantity and quality of labor. "

This position represents the simplest way of an individual approach to assessing the work of specific workers: the breakdown of fixed wages by salary and various kinds of "allowances" - what Rostrud calls the "above-tariff part".

Position of the Supreme Court of the Russian Federation

Concerning judicial practice, an important precedent confirming the inadmissibility of establishing different fixed values of wages for workers performing work of the same complexity are the following definitions of the IC in civil cases The Supreme Court RF.

Arbitrage practice. In the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of October 14, 2005 N 5-B05-120, the history of a long-term lawsuit filed by the pilots against the employer on the obligation to pay an unjustified difference in wages is set forth. The crux of the matter is that the employer decided to transfer the flight crew to fixed-term individual labor contracts. For those employees who agreed to sign them, the rate for flight hours was set higher than for those who refused such contracts. The organization's remuneration clause stipulated this distinction.

The court stated in the ruling that "the payment of wages to plaintiffs for equal work in a smaller amount than other workers performing the same work, just because they have not signed individual labor contracts (contracts) with a limited duration, is a type of discrimination pay for equal work and violates the constitutional rights of the plaintiffs ", canceling the judicial acts of the lower instances, which the plaintiffs were denied the claim.

Arbitrage practice. A similar position is contained in the definition of the Investigative Committee on Civil Cases of the Supreme Court of the Russian Federation of December 22, 2006 N 5-B06-110.

The judicial act describes a situation when the plaintiff was fired and then reinstated at work. And after the restoration, she was given an underestimated salary. According to the court, "the establishment of the claimant's wages for equal work at a lower rate than other senior experts of the department who had an equal salary with her before dismissal and doing the same work, just because she was subject to dismissal due to staff reductions, is one of the types discrimination in pay for equal work violates the constitutional rights of the plaintiff. " In this regard, the claims were satisfied.

As you can see, the highest court also does not support an unjustified difference in fixed wages. The 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 the difference in wages

So, let's consider the 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 bonuses to them

This situation is not uncommon, and, as a rule, employers set the same fixed wage without delving into differences between workers or rewarding the more efficient worker with bonuses. But if an employer wishes to provide a tailor-made approach to remuneration for work in the form of a fixed amount, without issuing bonus orders each time for more productive workers, he should conduct a thorough analysis and comparison of the business qualities of the workers. After all, it is precisely these qualities, all other things being equal, that can act as an argument in establishing a higher wage for a more efficient employee.

In many modern companies a system of positional levels, classes, grades, etc. is applied. Its essence is that within one position, employees are classified according to certain signs: classes, grades, grades, levels. This approach is quite admissible in accordance with labor legislation and is nothing more than a remuneration system, which, in accordance with Art. 135 of the Labor Code of the Russian Federation, the employer has the right to establish. Within the framework of such a remuneration system, employees are classified according to their business qualities, including through certification.

Unfortunately, the Labor Code of the Russian Federation does not disclose this concept and does not contain basic provisions on the procedure for conducting such certification. The certification of an employee is mentioned in Art. 81 of the Labor Code of the Russian Federation as one of the grounds for dismissing an employee who has insufficient qualifications for the position held. However, many companies use this tool for much more positive purposes - to assess the business qualities of employees in order to individualize remuneration for work.

Arbitrage practice. An illustrative example this approach demonstrates the decision of the Isakogorsk District Court of Arkhangelsk dated May 28, 2012 in case No. 2-169 / 2012.

So, the plaintiff and his colleague were in the position of electromechanics of the 8th category, performed the same job duties, while the salaries of the employees were set different. The plaintiff considered this state of affairs to be a violation of his rights and substantiated his claim with discrimination on the part of the employer, demanding to recalculate his underpaid wages based on the difference in salaries. But the employer set different salaries for the two electromechanics for a reason. The company introduced new system wages, in connection with which a methodology for setting official salaries was adopted. It envisaged score business qualities of employees, conducted by a special commission based on the developed parameters. The business qualities of electromechanics were assessed according to three criteria: length of service, professional knowledge and skills, quality of performance of official duties. According to these criteria, the plaintiff scored fewer points than his colleague, who had a longer experience and performed his work better. Since the plaintiff considered the commission's assessment of his business qualities to be biased, the court questioned witnesses who carried out working interactions with both employees. The witnesses confirmed that, although both employees perform work of the same complexity, the plaintiff's colleague does the job better, has more experience, colleagues prefer to contact him more often than the plaintiff.

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

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

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

- the establishment of various salaries was due to the business qualities of each of the employees;

- an individual approach to the remuneration of each employee complies with the current labor legislation and does not constitute discrimination. Based on these theses, the court denied the plaintiff his claims.

Employees can be set not only different salaries, but also different bonuses to them depending on the business qualities of employees working in the same position.

Arbitrage practice. Let's give another example from judicial practice - the ruling of the Irkutsk Regional Court N 33-5975 / 12 of 24.07.2012.

The plot of the dispute was that the employee was reinstated at work by a court decision. An employer who was forced to continue labor relations, based on the results of certification, assigned the employee a lower rating than he had previously, and set him a lower bonus to the base part of wages. In addition, the rest of the staff received a base salary increase, but the plaintiff was not. At the same time, the job description was the same for all employees in this position. The plaintiff considered these circumstances to be discrimination, in connection with which he applied to the court. The court refused the plaintiff, motivating its decision with arguments similar to those given in the previous judicial act.

In our opinion, the position of the courts is quite reasonable and well-reasoned, although it does not agree with the position set out in the Rostrud Letter. But here it should be noted that the Letter is not mandatory for application, it is only the opinion of an official of the regulatory body, an alternative position on this issue.

It is also noteworthy how employers substantiated the difference in salaries: a thorough work was carried out to assess the business qualities of employees on the basis of the developed methods. This approach, although it is an element of corporate bureaucracy, is a clear and understandable mechanism that makes it possible to equally provide an individualized approach to remuneration and protect the company in the event of claims by “offended” employees.

Employees are in the same position, but have different responsibilities (job descriptions) and different salaries

This situation presents a simpler option for justifying the difference in fixed salary (s). Here the employer does not need to assess (attest) employees, since differences in job responsibilities imply different business qualities of employees performing these duties, and, accordingly, different remuneration for the work of each of the employees. Let's look at a couple of examples of how this happens in practice and how the employer reflects the complaints of disgruntled employees.

Arbitrage practice. In the determination of the Krasnoyarsk Regional Court dated July 22, 2013 in case No. 33-6699, the following case is described. The two employees had the same positions - "senior engineer for the operation and optimization of the mobile network", but at the same time their salaries were different. When an employee with a lower salary found out that his colleague had a higher salary, this was the reason for going to court with a claim for discrimination and payment of the difference in wages.

The court examined the job descriptions of both employees and concluded that the higher-paid engineer had a job responsibilities wider and higher responsibility. On the basis of this, the court considered it lawful to establish a higher salary for an employee with a wider range of duties and greater responsibility.

Arbitrage practice. A similar situation is considered in the appeal ruling of the judicial collegium of the Penza Regional Court dated 17.07.2012 N 33-1679. One in three staff members in the position of legal counsel received less than two of his colleagues, which served as the basis for filing a discrimination claim. The court examined the job descriptions of the plaintiff and his colleagues, questioned them as witnesses and concluded that the duties of the plaintiff's colleagues were more complex and required specific knowledge in various areas of law and a greater degree of responsibility. Accordingly, the claim was dismissed. Thus, from the examples given, it follows that in order to establish different salaries for employees in one position, it is necessary that the scope of their duties differs in volume and complexity, which must be confirmed by the job description (and / or employment contract).

Employees of the same position and with the same duties have the same salary, but different allowances

Perhaps one of the least difficult ways to set different salaries for employees is to make the same salaries and introduce differentiating bonuses according to certain criteria. It is this case that is described in the case below.

Arbitrage practice. Two employees worked in one position - "business development manager". One had a salary significantly higher than the other, in connection with which the latter initiated a lawsuit on discrimination. At the meeting, it was established that the higher-paid development manager had 10 years of work experience, and the plaintiff did not. At the same time, the staffing table provided for an increase in salary for seniority, and this was exactly what explained the difference in wages. On the basis of such arguments, the court rejected the plaintiff's claims (the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated 16.05.2012 N 11-5036 / 2012).

Note that this position is most consistent with that stated in the Letter of Rostrud.

Having considered several typical situations of justifying "unequal wages", one can see that the courts in this matter are quite loyal to employers. But it should be remembered that this is due to a clear documentary and factual justification of the difference between the fairly assessed business qualities of employees and / or the scope of their responsibilities. Those companies that find ways to competently and fairly justify such a difference both within the company and in the litigation have a high chance of success in the event of claims of offended employees.

We also note that the situation when salaries are not equal can raise questions from the authorities state inspection on labor, which is closer to the position set forth in the Letter of Rostrud. Accordingly, there is a risk of being held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, if the labor inspector finds a violation of the law. That, nevertheless, does not prevent the employer from defending his position in court by appealing against such a conclusion of the labor inspectorate.

Also, some specialists with a grading system, ratings, etc. advise, within the framework of specific grades, to establish different categories of positions, for example, the leading legal counsel of the 1st category, the leading legal counsel of the 2nd category, etc. Accordingly, these will already be separate positions, and in the event of a change in the grade of an employee, it is necessary to arrange a transfer to another job, which creates an additional burden on the HR department.

You should also pay attention to the fact that employees file claims because they do not have a very good idea of what caused the difference in wages. This is due, among other things, to the lack of transparency in the wage-fixing system: it is often simply not clear to employees why a colleague is paid more and why the difference in wages is carefully hidden, which causes a feeling of injustice. IN this direction it is necessary to conduct explanatory work with personnel, explain the principles of formation of remuneration for work in the company, both to all employees and to a specific person who believes that he is financially underestimated. This will help in many cases to eliminate looming conflicts over unequal wages.

Berezutsky Vladimir Nikolaevich(06.11.2012 at 16:01:08)

Good afternoon, Ilya. Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not below the established minimum size wages, This provision has found its further implementation in tudovuyu legislation. Thus, in article 2 Labor Code RF the principle is enshrined in accordance with which each employee is guaranteed the right to timely and full payment of fair wages, ensuring worthy of a man existence for himself and his family, and not lower than the minimum wage established by federal law. This principle is manifested in the consolidation of the employer's obligation to provide employees with equal pay for work of equal value (Article 22 of the Labor Code of the Russian Federation). Therefore, each employer is obliged to establish a remuneration system, since the establishment of salaries cannot be arbitrary (RF Determination of 11.11.1997 // Bulletin of the Supreme Court of the RF. 1998. No. 3). The wage system adopted at the enterprise must take into account the requirements of laws, other regulations, agreements, local regulations and labor contracts (Articles 129, 135 of the Labor Code of the Russian Federation). The staffing table is an internal, local normative act, which determines the official salaries for each staffing unit (position), indicating its category, class, category, qualifications. This can be seen very clearly in the example unified form T-3 "Staffing", approved by the Resolution of the State Statistics Committee of Russia No. 1 dated 05.01.2004 ( given form is advisory; the enterprise can develop its own form of staffing table). Quantity staff units is determined at the discretion of the employer, while the employer has the right to secure several staff units with an identical name (for example, legal counsel - 3 units, senior legal counsel - 2 units, etc.). Requirements for holding a position, scope of duties, powers and responsibility of an employee are determined, as a rule, in the job description (in an employment contract, only the name of the position or a general indication of the employee's labor function without specifying functional responsibilities). The job description must correspond to the name of the position in the employment contract and the name of the position in the local documents of the enterprise (including in the staffing table). Consequently, wages at the enterprise are regulated by a number of local regulations, which are an agreed and interrelated system that presupposes a uniform approach to determining the amount of wages for certain categories of workers. Therefore, in the staffing table for one position, several salaries (tariffs) cannot be established, since there are no systemically fixed criteria for the employer's preference for remuneration of each of the employees for this position. However, in practice, indeed. a situation may arise when several staff units are approved for one position with different salaries in the staffing table. This situation can be viewed in two ways. First, employees in the same job may receive unequal wages for equal work based on the subjective preferences of the employer. This can be regarded as discrimination against workers in wages. Numerous cases in this category indicate that the courts unambiguously rule in favor of employees, collecting the difference in salaries from the employer. Secondly, with different salaries for one position in the staffing table, there may be several job descriptions with different scope of duties and level of qualification requirements. If we approach this situation formally and legally, then employees perform a different amount of work, and therefore it is impossible to establish the existence of discrimination in wages, since wages are remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions. work performed ... (Article 129 of the Labor Code of the Russian Federation). However, from the point of view of personnel records management, such an approach to determining the remuneration system is illegal, since, in accordance with Art. 57 of the Labor Code of the Russian Federation name of the position (specialty, profession) indicating qualifications in accordance with staffing table and the employee's salary are essential terms of the employment contract. Such a personnel policy at the enterprise can serve as a reason with employees on remuneration issues, and can also cause numerous complaints from the labor inspectorate. Based on the above. I think you should change the approach established in your organization, according to which it is allowed to set different salaries for specialists of the same position.