Do you know that a collective agreement is obligatory or not at your enterprise? Recently, this issue has become increasingly relevant against the background of amendments to the country's labor legislation. It should be remembered that the document can be called a collective labor contract, but in no case should it be confused with a regular labor contract - these are completely different papers!
What is this about?
What constitutes a collective agreement is described in the Labor Code in force in Russia, and specifically in article 40. It says that this term refers to a legal act designed to clarify social and labor interactions within a company or individual entrepreneur. This contract is concluded between the representative of the organization and the people serving in the company.
Only from the definition it is not clear whether a collective agreement is binding on the enterprise or whether its conclusion can be avoided. But we can say for sure that the existence of such an agreement provides employees (as well as the employer) with a number of additional benefits and rights, and also regulates some of the obligations of the parties indicated in the collective agreement.
How to conclude?
In order for the contract to be drawn up correctly, taking into account the interests of all the people to whom it relates, a special procedure has been developed. First, negotiations are held between representatives of the employer and the workers themselves. At the same time, people are trying to clarify: what conditions do they promote? Their task is to achieve such an option that equally suits both sides.
A protocol is drawn up, in which all disagreements are indicated, and also which version belongs to whom. If there is no disagreement, there is no need for such a protocol.
Do not confuse the concept
Is a collective labor agreement obligatory for an LLC or not? This question can be heard often, and it follows that many entrepreneurs confuse two completely different concepts:
- employment contract;
- labor collective agreement.
If the first must be concluded with a specific person without fail, then the second is formed at will and with the appropriate initiative.
Why is it generally accepted that a collective agreement is obligatory in an organization? Largely because of the confusion of concepts and lack of legal education of managers and employees.
Important Features
The conclusion of a collective agreement is mandatory - this is a wrong argument. At the same time, this is a desirable measure to improve the atmosphere in the team, giving certain benefits to all participants. If there is no desire to conclude such an agreement for the whole company, you can enter a collective labor agreement at a branch or other part of the company.
In recent years, in our country a collective agreement has been concluded infrequently. Usually quite large enterprises take it upon themselves. As a rule, the answer to the question of whether a collective agreement is binding is precisely what the trade union of the company knows: no, it is not, but this paper should be done. It is the unions in most cases that promote such agreements, because they care about the benefits of employees. But as for individual entrepreneurs, then the practice of drafting collective labor agreements tends to zero.
What's inside?
So, we found out whether a collective agreement is obligatory for the LLC, and came to the conclusion that no, such a document is not required, although it is possible to draft it.But what to write inside if it was decided to implement it at your enterprise anyway?
According to the law, it cannot be said that a collective agreement is mandatory, but there are requirements for what it should be if it was decided to conclude it. So far, no specific exact structure and content has been developed, so the lawyers of each individual company decide this issue on their own. It is generally accepted that in a particular case, the employees and the manager are well aware of the specifics of the workplace, on the basis of which they choose the conditions that fit into the local regulatory act.
So what is needed?
Let us turn to the Labor Code, currently in force in Russia, in particular, to article No. 41, since a collective agreement is concluded. Mandatory conditions prescribed in the document:
- remuneration, compensation - how to pay and index;
- learning;
- recreation;
- work;
- privileges, preferences;
- nutrition;
- abandonment of strikes;
- others as needed.
About money
Is it obligatory to conclude a collective agreement? Not. But there will be certain benefits from this. In particular, this applies to the financial aspect.
How much you need to pay a particular employee must be recorded in a personal contract concluded with him. This document is compulsory for each person when hiring him. But it contains only that which is individually applicable to this person.
If there are general conditions applicable to all employees in the enterprise and related to remuneration, it is reasonable to fix those in the collective agreement. Is a collective agreement mandatory in the organization? Not. Is it useful? Yes.
The local act records what, to whom and how it owes and relies, what you can count on and what you can expect, and when you can go on strike, because the rights are violated. At the same time, the collective labor agreement must comply with the standards introduced by the Labor Code.
Workflow performance
Surprisingly, it is a fact: even if personnel officers know whether a collective agreement is mandatory in an organization, they often still do not understand the benefits that this document provides. But it is precisely this local normative act that makes it possible to normalize labor productivity in the enterprise. This happens through the benefits that both parties receive when concluding an agreement.
Key positive aspects:
- the presence of additional guarantees, compensations, preferences, motivating employees to work;
- the presence of the contract creates a positive image of the company;
- reduction of personnel workflow, since it is enough to conclude an additional agreement with the employee when hiring him;
- minimization of conflict situations, the likelihood of strikes, since all aspects of the work process were discussed at the time of the conclusion of the contract.
So, is a collective agreement obligatory or not? No, but beneficial.
What about taxes?
An additional benefit is a collective labor agreement in terms of tax payments. This is described in the 255th article of the Tax Code in force in our country.
In accordance with this legal act, a company, if its employees and management have entered into a CA, may include compensation, bonuses, and other payments to employees that are included in the contract as expenses.
How to start the process?
If the company has a union, everything is very simple. Its employees know for sure whether the collective agreement is obligatory or not, they understand how to start its conclusion and how to approach the head to organize a correct and effective discussion of the conditions. But if there is no trade union, but among the staff there were activists ready to take on this issue? What to do in this case?
First of all, you have to tell the head and personnel department about whether a collective agreement is obligatory or not, and then offer to conclude this agreement.A representative of workers is selected, and in some cases a special representative body is created. For its formation, all employees of the company are gathered and a secret ballot is held.
The current Labor Code does not contain any conditions for the selection of representatives from among the employees of the company. Nevertheless, experts recommend making a decision in favor of a person if at least half of the entire staff of the company participated in the meeting and at least half of the participants voted in favor of one candidate. It is precisely such requirements that are imposed on assemblies during which a decision is made to start a strike, therefore it is fair to assume that they are appropriate in a situation of discussion of the CD.
Important points
The representative (or several) of the company’s employees is the person who has the right to take the initiative. After that, you can begin to develop a collective agreement. To do this, appoint negotiations in a special format. A proposal is prepared, which is then sent to the manager in writing. The document is internally registered. The company manager has seven calendar days to express readiness for negotiations or to refuse them. He sends a response to employees, in which he necessarily indicates who will represent the company, what powers this person will have.
Further, about three months, but not longer, the employees of the company and the representative of the organization agree on various conditions of the collective agreement. In the event that some controversial aspects cause conflicts and it is not possible to find methods for resolving them, after three months they sign the CBA, indicating in it only those points on which it was possible to reach consensus.
As for the disputed parts, a protocol of disagreements is formed on them, taking into account in it which versions each side adheres to. In the case when negotiations in the future still do not allow achieving a specific result, you can resort to a collective labor dispute. Such an opportunity is provided for in the current laws of our country, in the Labor Code, in the first part of article numbered 398. A mediation commission is convened to resolve the dispute, to which mediators are invited. In some cases, it is possible to resort to labor arbitration. It should be remembered that both parties must take part in conciliation proceedings without fail. Evasion is unacceptable by law.
How it works
The collective labor contract, as soon as it was possible to conclude this local legal agreement, immediately applies to each and every employee registered with the organization. It is equally applicable to those who took an active part in the selection of representatives, and to those who were amorphous at that time. KD will be valid in the future for each employee hired.
According to the legislation of our country there is no such standard that would speak about the need for a collective agreement. This document is not required. On the other hand, a number of norms of the Labor Code say that some issues can be resolved precisely at the expense of the CBA and not otherwise.
Only a collective agreement can normalize the following aspects:
- change in the length of the working day, if the conditions are harmful, dangerous for this;
- shift schedule;
- reduction of working hours at night;
- provision for additional occasions when vacations are not saved;
- the application of labor standardization methods defined individually in the company.
More recently, in 2012, a new resolution was adopted. According to this legal act, the employer does not have the right to refuse to conclude a collective agreement if, according to one of the norms of the Labor Code, he has to solve the issue from the number described above, that is, not considered in other documents.
And if not?
So, it has already been said more than once that the conclusion of a collective agreement is not a mandatory event in the company. But what if it was not concluded? How are relations between employees and employers regulated?
Everything is very simple. If there is no CA, it is necessary to follow those rules and norms that are described in the Labor Code of the country. At the same time, in the case when they try to threaten you with the institution of a business because of the absence of a collective agreement, remember that such requirements are illegal, there is no liability for the absence of this agreement by law.
However, if the trade union sent a proposal to conclude a CA, then here the situation is changing radically. We can not neglect the desire of employees and the activity of their representatives. If the leader, without real reason, evades the conclusion of the CA, he will have to answer according to the law.
Do not wait by the sea for weather
In most cases, the proposal to conclude an employment contract comes precisely from the company's employees. But the final document is equally beneficial to both the employer and the entire staff of the company. So is it worth the wait or can one take the initiative on the part of management personnel?
If the head of the company is interested in this, he can also initiate the process of concluding a collective labor agreement. But remember: if workers are fundamentally not interested in an agreement and refuse to create a representative body that would demonstrate their interests and take part in negotiations, they cannot be forced to do this, and then the undertaking will go to waste. This can be prevented by holding a meeting of all staff and explaining the benefits that people will receive if a collective labor agreement is in effect.
At the same time, remember that it is very difficult to adopt a CA if the company has several trade union organizations. Also, a difficult situation arises when such an association is one, but it does not include all employees. Try to avoid a situation where the manager does not have money for all those additional payments due under the CA. To prevent this situation, it is necessary to clearly establish the procedure for their financing.