Labor non-criminal – Picture of the day – Kommersant
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This week, an initiative group of Tinkoff-Bank employees announced their intention to file a class action lawsuit against the company. The reason for initiating legal proceedings is the failure to pay part of the salary to those bank employees who work under a civil law contract (GPC). “Kommersant” understood what prospects this case might have in court, taking into account recent decisions on similar claims.
This week, an initiative group of Tinkoff-Bank employees sent out a letter to a number of media in which she announced violations of labor laws by her employer. As follows from this document, since March, part of the Tinkoff employees – representatives, that is, those who deliver bank and SIM cards to customers, present banking products – monthly receive an average of 40% less than in previous months with the same work schedule . According to the initiative group, up to 11 thousand bank employees working in Moscow, St. Petersburg, Moscow and Leningrad regions could face non-payments. As follows from the letter, these employees work under a GPC agreement, which provides for 300 types of fines and the ability to fire an employee in one day, and also does not include sick leave and vacations.
“Tinkoff Bank has been using this illegal employment scheme for years. However, in fact, employees working under such contracts work as employees – and do not have the labor guarantees required in this case. It is the recognition of GPC contracts as labor contracts – with all the benefits and payments that are due in this case – that is the main requirement of the collective lawsuit of employees, which will be filed in court next week, ”said Stanislav Kulikov, a representative of the initiative group, to Kommersant.
The Tinkoff press service, in response to a request from Kommersant, reported that in March-May, the workload of representatives actually decreased due to “crisis phenomena in the economy”, as a result of which financial organizations reduced lending to the population.
“At the same time, Tinkoff did not make any cuts and gave each representative the opportunity to continue earning, albeit smaller amounts. There were indeed technical nuances with payments, but to date, all settlements for previous periods of work with representatives have been made, and the bank has no debts to representatives. We predict that the income of representatives in October will be comparable to earnings in February 2022,” the press service said.
The case of Tinkoff employees cannot be called unique.
In total, in Russia, according to Rosstat, at the end of 2021, about 1 million people worked under GPC agreements, but it is likely that official statistics do not fully take into account such workers.
Although the conclusion of civil law contracts that actually regulate labor relations between an employee and an employer is not allowed, Part 2 of Art. 15 of the Labor Code, this situation is quite common in practice in the Russian Federation, says Ekaterina Tyagay, partner at Pen & Paper.
The reasons for the popularity of GPC agreements among employers are clear, notes Elena Kozhemyakina, managing partner at BLS law firm. “A person under a civil contract has fewer guarantees. If the amount of payment of deductions under the GPC agreement and under the employment agreement can be compared, then the contract does not provide social guarantees. There is no vacation, sick leave, labor protection, and, most importantly, no restrictions on termination. The employment contract provides for a whole set of obligations: preferential categories, preemptive right in case of reduction, sick leave, pregnant women, medical examination and much more. Under the contract, there is none of this, ”she notes.
In practice, says Elena Kozhemyakina, it was not easy to distinguish between an employment contract and a civil one, and such a task was often not among the priorities for labor inspectorates that check the observance of the labor rights of Russians. However, in 2018, the decision of the Plenum of the Supreme Court of the Russian Federation No. 15 “On the application of legislation regulating the labor of employees working for individuals and small businesses that are classified as micro-enterprises” was issued. It contains 11 signs of an employment relationship, thanks to which employees have the opportunity to more effectively challenge the conclusion of GPC agreements with them in Russian courts.
In 2022, at least a few such cases were won in Russian courts, Ekaterina Tyagay notes, and in all cases, the courts relied on these criteria when making a decision. “For example, from the appeal ruling of the Yaroslavl Regional Court in case No. 33-1655/2022, it follows that the court took into account the systematic performance by a person of a certain labor function with the knowledge and on behalf of the employer. In another case, the court took into account that “executors under contracts for the provision of services for a fee performed certain labor functions that are part of the duties of the Company’s employees, in the specialties provided for by the staffing tables in accordance with the subjects and types of activities enshrined in the Company’s charter.” Thus, if, when considering a specific case, it is established that the relations of the parties that have arisen on the basis of a civil law contract meet the above labor criteria, taking into account the circumstances of a particular case, such relations can be recognized as labor,” she notes.
The courts are now set to protect workers as much as possible as the weaker side of labor relations, confirms Elena Kozhemyakina.
In particular, one of the latest cases where employees managed to prove that their work under the GPC agreement should in fact be formalized as an employment relationship is a lawsuit filed by employees of the Russian division of IPG Photonics NTO IRE-Polyus LLC. As Mikhail Makarov, one of the authors of the lawsuit, told Kommersant, back in 2018, together with a number of colleagues, he was invited to the company to work on a project to create a new plant in Dubna. “We were personally invited by the founder of IPG Photonics, Valentin Gapontsev. A separate subdivision “OP Dubna” was opened for our team, they rented an office with office computers, paid salaries, and in fact we were fully integrated into the structure of the Russian subdivision of the company. However, these relations were formalized on the basis of work contracts – “for starters,” as we were told at IRE-Polus. Nevertheless, the transfer to the state never happened, despite our constant reminders about this, ”he says.
By June 2022, he said, “it became clear that these contracts would not be renewed with us,” which the company informed employees on June 15. “There were both pensioners and pregnant women in the team, but this did not bother anyone. In early July, we filed 11 lawsuits, and on August 19, the court of first instance satisfied all the basic requirements – recognizing the relationship as labor, making entries in work books from September 1, 2019 to August 19, 2022, dismissal due to the liquidation of the OP. The court slightly reduced the moral damage and the amount of expenses for the services of a lawyer, but we were satisfied with the very fact of victory on the basic requirements. The decision has not yet entered into force, the appeal period has not yet expired. The truth is on our side, which was confirmed by the court decision, and IPG Photonics violated Russian labor laws for several years – and this directly contradicts their own Code of Business Conduct,” says Mikhail Makarov. As follows from the decision of the Dubnetsk City Court No. 2-824/2022 – M-735/2022, if it comes into force, the company will have to pay more than 13 million rubles to the plaintiffs.
According to Elena Kozhemyakina, the court’s decision looks quite logical, since the case contains almost all the key features of labor relations: work schedule, teamwork and management, solving current and permanent tasks, payment at the same time, etc.
“Yes, the work was paid on the basis of acts, but, in fact, this is a formal cover. Therefore, the award of payments by the court could be expected. Most likely, the case will go to the next instances, but I doubt that the decision will be canceled,” she said. In this case, as Anna Ivanova, head of practice and labor law at BGP Litigation, notes, the company “stepped on every possible rake.” A separate division was created for a certain team of specialists. “There were similar positions in the staff list, local acts of the company were sent to employees for review, and a salary project was opened, although the employees worked under contract agreements,” she says. “The court decision gives a complete picture of what expenses the company will incur if it lose this case.”
Given the emergence of such judicial practice, it can be assumed that Tinkoff employees have a chance to win a class action lawsuit. “Of course, it is necessary to study the internal documents at Tinkoff, but, based on the introductory information, the employer has a whole bunch of problems that threaten with serious sanctions. And the court in this case will easily and quickly take the side of the workers. For example, partial non-payment of wages for more than three months or complete non-payment for two months can even threaten criminal prosecution. Not to mention payments and reimbursements,” notes Elena Kozhemyakina. The current story with a class action lawsuit and the participation of dozens of people at once, according to her, can serve as a signal for all participants in the Russian labor market. “For employers, this means that the GPC will be under even greater control, for employees – that it is stronger to defend their positions, for supervisory authorities – that it is important to more actively check contractors and other performers as part of employers’ checks,” she said.
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