Report by B.Gorokhov, Judge of the Supreme Court of the Russian Federation: topical issues of the court practice of labour law application

The traditional round table, organized by the Labour Law Chair of the Higher School of Economics - National Research University, was held in Moscow on October 16. Boris Gorokhov, Judge of the Supreme Court of the Russian Federation, Chairman of the Group of Judges for Labour and Civil Cases of the Civil Case Board of the SC of Russia. Advocate Anna Kotova-Smolenskaya, Doctor at Law, Associated Partner of the Law Firm "YUST", represented the Firm at the event.

Professor Yuriy Orlovskiy, Head of Labour Law Department, opened the round table. In his speech, he pointed out that court practice is “the bridge between legislation and concrete life situations”, but that it is not always unambiguous. For example, many experts questioned the last year’s court rulings on the claim by a former employee of the Zenit Bank on what should be considered change of a labour function.

This year, the case to rule moot the provisions of the resolution No. 298/П-22 by the State Labour Committee of the USSR and the Board of the All-Union Central Council of Trade Unions, dated 25.10.1974 and the Instruction on the procedure of application of the List of industries, shops, professions and positions with harmful work conditions, working in which entitles to additional vacation time and shortened workday, approved by the resolution No. 273/П-20 by the State Labour Committee of the USSR and the Board of the All-Union Central Council of Trade Unions, dated November 21, 1975, has been causing equally heated discussion.

Hence, in April of 2012, the SC of Russia acting as the first instance court acknowledged that those Soviet acts produced no legal consequences, thus essentially being inapplicable. In October of 2012, the Ministry of Labour of Russia acknowledged the decision by the SC of Russia, but still recommended the employers to follow said documents. Professor Y.Orlovskiy noted that the document by the Ministry looked more like a “riddle” than an explanation.

In his turn, Boris Gorokhov explained that the situation was indeed ambiguous. The General Prosecutor’s Office joined the process and filed a cassation complaint, which permitted the restoration of the appeal period and the interested persons were able to reinitiate the consideration of the issue of application of said acts. The consideration of the case is scheduled for November 1st (10:00, room No. 4038).

The Judge of the SCRF gave the examples of labour disputes, the cases of which reached the Judicial Board of the SCRF. He said that “certain questions are seemingly obvious, but it is not always possible to answer them right away”. B.Gorokhov called the attention of those present to the latest labour disputes, when the Supreme Court was forced to define abuse of labour relations right by a party in each separate case. In particular, it is especially difficult to consider the cases of the “golden parachute” and of contesting the respective ancillary agreements with top managers. The Judge believes the issue of what should be considered abuse of rights should be resolved at the legislative level. He asserted: “It is not up to the court to look for the threshold of the parties to the relationship in this situation. The court in this case should determine the legal construction and state whether or not the right has been violated”.

Continuing the discussion of the latest trends, Advocate Anna Kotova-Smolenskaya, Associated Partner of the Law Firm "YUST", stated that regional courts frequently disregard the practice of the SCRF, and sometimes make rulings, which go totally against it. The Advocate is of the opinion that such judicial discretion is unmotivated and goes against the legal concept of uniformity of court practice. A.Kotova-Smolenskaya said that a way to resolve this problem is to make additions to the resolution No. 2 by the Plenum of the SCRF dated 17.03.2004, which is obligatory for all common law courts, on the application of the Labour Code of Russia regarding the issues , which have obviously become topical.

The members of the round table were also able to discuss the practice of settlement of disputes with the participation of trade unions and the variety of offences committed by employers during downsizing, closing subsidiaries, calculating salaries for the persons, who work in special conditions etc.

The results of the last year’s round table are available here.

“A Judge of the SC provides lawyers with a way to solve legal incidents in labour disputes” - Pravo.RU

“Labour legislation: who abuses the right?” – official website of HSE NRU