Labour law: topical issues and best practices of 2012

The VI Professional Conference “Labour law: topical issues and best practices of 2012” was held on November 28 and 29. The event was organized by Infor-media Russia with the support from the Law Firm "YUST". The specialists centered their attention at the latest changes to the employment legislation and the practice of modern-day law application, the issues of resolving corporate conflicts during structural changes in companies, topical judicial practice and extrajudicial settlement between employees and employers, the possibilities to resolve problems with the use of confidential information and personal data protection.

This year, the representatives of the Ministry of Labour and Social Security of the Russian Federation, of the Federal Service of Labour and Employment of the Russian Federation, of Oleg Kutafin Moscow State Academy of Law, of the Moscow Region Court, lawyers of large industrial companies, of largest international and Russian law firms, other notable labour law experts.

Advocate Anna Kotova-Smolenskaya, Associated Partner of the Law Firm "YUST", represented the Firm. She moderated the session “Restructuring of labour relations: practical aspects” (first day of the event, November 28 of 2012). In her opening speech, the expert said that the employers, especially large companies, periodically face the necessity to optimize the work at the enterprise. Usually the redistribution of the workload, changes to the staff structure of the venture by downsizing the economically unviable positions and opening new vacancies for strengthening certain activities, testing the flexiplace practice etc. are among the measures employed for this purpose. Experts and practitioners argue, to what extent labour law permits to operatively influence the employment relations and to what scope such relations may be changed according to the will of the parties.

Natalia Shelihova, Head of Department on Judicial Work and Risks Management of Vympelkom OJSC, elaborated by pointing out that any internal change to the organization’s structure leads to the change of employment relations with the respective employer. The expert shared her professional secrets with the Conference members on how to lower the risk of contesting the downsizing and the subsequent restoration of thus dismissed employees to their positions.

Anna Ivanova, Head of Labour Law Practice of the Advocates’ Bureau “Yegorov, Puginsky, Afanasiev and Partners”, spoke on the problems faced by the employers during interaction with trade unions. The ill-faith leaders of trade union organizations have the opportunity to abuse their right not only in the case of dismissal on the employer’s initiative, but also during the adoption of internal normative acts by the company – for example, on the remuneration system, on the attestation of employees and the change of labour condition.

Natalia Istomina, Whirlpool Legal Consultant for the CIS and Central and Eastern Europe, told about the ways the employers resolve the problems related with the regulation of the flexiplace workers. Her recommendations on the control over the performance of the travelling agents were of a special interest.

Snezhana Pentsova, Heand of Labour Law Practice of ANKOR recruitment holding, closed the work of the session. She dwelt on the procedural issues of protection of a party to employment relations in court. She mentioned among the most significant court acts by the Supreme Court of the Russian Federation adopted in 2012 the Determination No. 46-B11-35 dated 23.03.2012. According to the position of the supreme judicial instance, the provision of the CPCRF regarding the possibility of filing claims at the location of performing under the contracts encompasses employment relations (see also TOP-5 court acts by the SCRF).

Alexey Lebedev, Chief of Section of Supervision and Control on the Issues of Labour Safety of the Department of Supervision and Control over the Compliance with the Employment Legislation of the Federal Service of Labour and Employment of the Russian Federation, inaugurated the second day of the Conference. He raised the issues of the need and the procedure of holding the attestation of workplaces. According to him, the employers tend to commit the following breaches in this sphere:

• Not holding the attestation of the workplaces;
• Not holding the compulsory medical examinations of the employees;
• Not educating the labour safety specialists.

Elena Chelembeeva, Head of the Legal Department of Volvo Group Russia, continued the discussion. She spoke on the defects of the normative base regulating the matters of attestation of workplaces. The expert called the participants’ attention to the responsibility of the manager. According to the Administrative Offences Code of Russia, disqualification may follow the repeated violation of labor safety norms. Any second case of such violation is considered repeated, and not only the failure to fulfil the State Labour Inspectorate’s demand to correct a certain violation.

Valery Korzh, Director of Department of Labour Conditions and Safety of the Ministry of Labour of Russia, informed that the Government is actively developing normative acts on labour safety and norms, since the current ones are “morally obsolete”. According to him, the officials anchor their hopes in the principle of management of professional risks, according to which, employers should be protected from factors and not from profession.

In particular, it is planned to stipulate a minimum number of harmful factors and means of protection, which the employer will have to take into account, as well as a minimum number of mandatory actions of protection of employees. V.Korzh is of the opinion that this will motivate the employer to improve the workplaces.

The representative of the Ministry also said that in 2013 the attestation of workplaces will be simplified, the peculiarities of the work of office workers and industrial workers will be taken into account, and that the implementation of the “green office” system is planned, according to which the lessor will be obliged to offer office premises with the necessary minimal required work conditions.

Besides, the Ministry of Labour, according to its representative, aims at streamlining the labour protection norms and “translation of the normative legal acts into a modern and understandable language”.

The other vividly discussed themes included:

• Pitfalls of the application of Article 74 of the LCRF on changing the terms of the employment contract on the employer’s initiative;
• The employer’s risks related to the dismissal of an employer for loss of confidence or for theft committed by him;
• The complications of proving the disclosure of confidential information by the employee.

At the end of the Conference, Nadezhda Krasnova, Judge of the Moscow Region Court, held a master class. She reminded the participants of the event of the novelties, which appeared in the labour law lately: changes to Article 261 of the LCRF regarding the rights of fathers of many children, additional motive for dismissal (criminal record of an employee of an educational, cultural organization), changes to Article 113 of the LCRF on holidays, weekends, the additional chapter on subterranean works. Together with the participants, the Judge was able to discuss the drawbacks of said norms.

During the master class, Nadezhda Krasnova told of the topical court cases dealt with by the Moscow Region Court. In particular, during the consideration of those case, the answers were given:

• If the position of a temporarily absent worker may be considered vacant;
• If it is possible to dismiss for the reason of liquidation after the decision to liquidate, and not after the exclusion from the USRLE;
• If the downsizing order may be contested without contesting the event itself etc.

At the conclusion of the professional Conference, its participants were able to ask additional questions to the experts, to thank the speakers for interesting reports and informative presentations, and to exchange contacts for future business relations.

The official post-release of the event is available at the organizers’ website.