How to draw up a motivated opinion of the trade union when reducing staff or one employee

Responsibility of the employer for failure to notify the trade union body of the upcoming layoff of workers

Any deviation from the regulated procedure for carrying out layoffs, including failure to properly notify the trade union body, is equivalent to a violation of labor legislation. Responsibility for such violations is determined by Art. 5.27 Code of Administrative Offenses of the Russian Federation.

This article mostly provides for a warning or an administrative fine. For officials, the size of the financial sanction is set at one to five thousand Russian rubles. The amount of the fine for legal entities established by the code can be from thirty to fifty thousand rubles. Entrepreneurs for such violations are fined in the amount of one to five thousand rubles.

In case of repeated violations, the applied sanctions are increased. For example, an official is fined a larger amount or disqualified for 1-3 years.

Among other things, in some cases the option of restoring a laid-off employee to his previous job cannot be ruled out.

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Employer Responsibilities

Termination of an employment contract is carried out under Article 81 of the Labor Code. Part 1, paragraph 2 provides for compliance with a number of obligations by the employer. This also includes notification at least two or three weeks before dismissal of the following persons and departments:

• The employee, adding the reason and time of dismissal, as well as available vacancies;
• Employment services, including the scope of exemptions and the listing of positions being reduced;
• Notification of the trade union about a reduction in the number of employees of the organization. There should also be a list of reduced positions and a list of employees who are subject to dismissal.

Those notices and information about layoffs that are forwarded to the employment service in the region will be filled out in a standard form.

At the same time, there is no standard template for notification of the trade union committee about staff reduction, so the employer can arbitrarily draw up a protocol on the reduction.

Employer's mistakes when notifying the trade union about the dismissal of workers due to staff reduction

Trade union notification of layoffs: sample document

The ability to independently develop a form for notifying the trade union committee about upcoming measures at the enterprise to reduce staff or the number of employees does not give the employer absolute freedom in the concept of presenting the text of the notification. We must not forget that this is an official document, and therefore must contain:

• availability of installation data of both the enterprise and the trade union committee;
• official language of presentation of the essence;
• the presence of official attributes - signatures, seals, stamps, document registration data.

In order to avoid possible mistakes and correctly document the procedure for dismissing employees, HR specialists, when preparing a package of documents, are recommended to develop a notice of the trade union about the layoff, the sample of which will be optimized for the specifics of the enterprise and the specific reason for the dismissal (downsizing, restructuring, staff reduction) .

Union opinion

A motivated opinion is the opinion of a trade union, which is based on the norms of labor legislation and the practical qualities of a particular employee. If the trade union does not share the employer’s position, then it is obliged to substantiate its opinion and provide reasoned arguments that caused the disagreement.

The opinion of a trade union organization is not motivated if it is accompanied by a similar statement “the dismissal is unjustified” or “irrational”.

When one employee leaves

Trade union approval is necessary in situations where the working relationship with an employee is terminated due to:

• reduction in the number of workers in the organization;
• the worker’s inadequacy for his position due to low professionalism, which is proven by the results of certification;
• failure by a worker to comply with his obligations without extenuating circumstances if he is subject to a disciplinary sanction.

The Labor Code of the Russian Federation does not regulate the situation when an employee who is simultaneously assigned to two or more trade unions quits, but such cases are not uncommon in life. The court believes that it is lawful to dismiss a worker when:

• one trade union approves the dismissal, and the second has not expressed its opinion;
• the employer notified only one union committee because it did not know that the former employee was a member of two unions.

When staffing is reduced

In general, there is no difference in the regulation of the dismissal of one worker or the liquidation of an entire staff. The only procedural feature is that the employer must send the draft order to the trade union 3 months in advance, not 2.

Order to reduce staff

The letter must reflect information about the number of positions being abolished, qualification requirements, professions and specialties of employees, and wages for each position.
The same notification must be sent to the trade union organization of the enterprise. If the staff reduction is massive, the employment service authorities and the trade union must be notified 90 days before the event. The employer is obliged to inform each employee of the enterprise about the upcoming dismissal, against receipt, two months before the layoff.

Reduction in number or staff of employees

The likelihood of an employee filing a claim for reinstatement is quite high.
And any deficiency in the paperwork may result in the need for the employee to be reinstated at work.

When carrying out the layoff procedure, the employer must comply with the sequence of actions, as well as the deadlines established by labor legislation. We have combined the employer’s actions into a step-by-step algorithm that can be followed, taking into account the nuances of a particular employer.

Step 1.

Employment service notification

In addition to notifying the employees themselves, as well as the trade union organization, the employer must also notify the Employment Center about the upcoming staff reduction.

This obligation is imposed on all employers, regardless of their organizational and legal status. This should be done by both legal entities and individual entrepreneurs. The notice period for legal entities is at least 2 months, and for entrepreneurs - at least 2 weeks.

The form for notifying the employment center about upcoming layoffs is not provided for at the legislative level, so the employer has the right to use any form of notification, but only written. It is advisable to issue it on the official letterhead of the enterprise.

The notification to the central labor center must contain exactly the same information as when notifying the trade union.

For a document to be considered valid, it must contain the following information:

• about the employer;
• about the Employment Center to which it is submitted;
• positions of laid-off workers;
• their full name;
• everyone's profession;
• the level of education;
• qualification;
• information about what salary a particular laid-off employee received.

The notification is submitted to the Employment Center at the employer’s location. This is necessary in order to begin monitoring the labor market in time for possible employment of the unemployed. The place of residence or permanent registration address of laid-off workers does not play a role.

If the employer does not notify the Employment Center on time or does it improperly, he can be brought to administrative liability under Art. 19. 7 Code of Administrative Offenses of the Russian Federation. According to this article, the sanction is a fine in the amount of:

• 100 – 300 rubles if a person is found to be a violator. For example, an HR employee;
• The chief accountant or manager will have to pay 300 - 500 rubles, since they are officials and responsible for the fulfillment of this duty;
• The enterprise itself will pay 3,000 – 5,000 rubles.

The following is considered a violation:

• failure to notify the central control center about upcoming reduction measures;
• untimely notification of the central control center about upcoming events;
• providing incomplete data or information that is not true.

Sample of a motivated opinion of a trade union in case of staff reduction

The Labor Code requires that the motivated opinion of the trade union be taken into account when dismissing at the initiative of the company. The timing and features of this procedure will be explained in our article.

When employees of an organization are members of the primary trade union cell, the employer will have to take into account the position of the trade union committee. The employer may not agree with the decision made by the union. In this case, the main thing for the company is to comply with the established procedure.

The participation of the trade union committee in the development of local acts of the employer makes it possible to achieve better working conditions for its members. Ignoring the need to take into account the position of the trade union committee in a labor dispute will inevitably lead to a more advantageous position for the employee when applying to the State Labor Inspectorate. And in case of dismissal - reinstatement at work, since the established procedure was not followed.

When drawing up an appeal, the employer must comply with the requirements of the Labor Code of the Russian Federation. Thus, the document includes the following data:

• grounds for dismissal;
• Full name of the employee, position, structural unit;
• terms of contract termination.

The appeal is signed by the head of the organization.

Often large companies, together with public organizations, reduce their workforce. The director of the enterprise may not like the motivated opinion of the trade union when reducing staff. The manager will have a sample response upon approval first.

Professional organizations always protect the rights and responsibilities of all employees. After the union receives a request for joint action, it prepares its individual opinion on it.

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In this regard, the primary trade union organization holds a regular meeting, based on the results of which an official document is being prepared aimed at coordinating further joint actions.

according to the project ______________________________________________________________

The project complies (does not comply) with the requirements established by articles of the Labor Code of the Russian Federation, other federal laws (and other) regulatory legal acts containing labor law norms governing the adoption of this regulatory act, clauses (articles) ________________________________ agreement, clauses (articles) ________________________________ collective agreement, does not worsen (worse) the situation of workers.

Based on the above, we consider it possible (impossible) for the employer to adopt (name of the trade union body) ____________________ (name of the draft local regulatory act).

Management makes a decision on dismissal taking into account the size of its enterprise.

All documents confirming the need for dismissal, including letters received from the trade union, are attached to the signed decision order. This takes into account the justifications and demands put forward by this public organization for the protection of workers' rights. The process of dismissal of employees can occur:

• when restructuring an enterprise;
• when making changes and additions to the current staffing table;
• at our own discretion.

The decision made by the employer is based on the results of the protocol meeting of the current expert commission of the enterprise. This is where a motivated approach matters.

All employees are notified in advance of upcoming layoffs. They may be offered a vacant position, but sometimes the problem cannot be completely resolved. In this regard, the union's consent to dismissal may be necessary to protect the employer himself. Legal procedures for terminating an employment contract must be drawn up correctly.

Current laws, regulations, as well as the collective agreement concluded between the employees of the enterprise, management and the professional organization are used in full. When making a reasoned decision on dismissal, the employer takes into account:

• employee qualifications and productivity;
• presence of dependents;
• additional circumstances and reasons for dismissal.

An order to terminate an employment contract with an employee or, conversely, to refuse to terminate it, signed by the head of the organization, is sent to the local committee of the primary organization.

The decision is made taking into account compliance with labor legislation. Based on the data received, the trade union is conducting investigative measures, the results of which can be appealed in court.

The necessity and legality of the employer’s actions may be caused by a decrease in the volume of work and services performed, as well as a reduction in the wage fund. To protect its employees from unreasonable actions of the employer, the primary professional organization concludes or renegotiates collective agreements and industry agreements.

According to the Labor Code of the Russian Federation (Article 81, Part 2), the employer does not have the right to transfer an employee to another position without his consent, if he refuses the transfer in writing. The volume of reduction of labor units is affected by:

• state;
• actual number of employees;
• the number of employees who committed various types of violations.

Some cuts are widespread. Therefore, the employer must notify the trade union and the employment service 3 months before dismissal.

The trade union committee individually prepares a separate opinion of the trade union committee for any employee of the enterprise who is a member of the trade union.

Dismissals are not allowed during the period of annual leave or temporary disability - illness or force majeure. Socially vulnerable categories of employees have a priority right to remain at their workplace, since they are limited in their actions due to family, personal or other circumstances.

After the trade union committee receives an order to dismiss employees by the employer, it prepares a reasoned response on behalf of its organization.

If such a response is not prepared within 7 days, then it is considered that the primary public organization has no objections to dismissal.

Termination of an individual labor contract occurs only with the consent of the highest trade union body. In accordance with Part 3 of Article 180 of the Labor Code of the Russian Federation, after termination of the employment contract, the dismissed person will be additionally paid compensation in the amount of his average salary.

Regardless of whether an employee worked at the company officially or part-time, he is still subject to the same trade union guarantees and compensation.

Consequently, he is already covered by all types of compensation and social guarantees, as if he were fired.

The HR department organizes the process of hiring and firing employees of large companies. This structural unit interacts directly with the head of the entire enterprise and directly with the primary public organization.

Administrative work on the proper dismissal of employees lies with department specialists. Not only do they perform their work here as performers, but they are also psychologists. When an organization's staffing levels are reduced, there are always many dissatisfied people.

The individual opinion of the trade union on staff reduction that comes to the department relates to civil law, therefore the department must have a lawyer who understands the rights and represents the organization in court and other law enforcement agencies and organizations.

Taking into account the received opinion, the employee independently takes actions and prepares organizational procedures that make it possible, through membership in a trade union, to be reinstated in the work of his enterprise. In court cases, it is necessary to comply with deadlines, regulations, and it is advisable to independently collect a complete system of required evidence.

If all the above conditions are met, you are guaranteed to be reinstated at work.

When the trade union is able to win a labor dispute during the legal proceedings, the employee will be reinstated in the workplace, and for forced absences he will be paid wages and even compensated for moral and psychological damage.

How does dismissal due to redundancy occur under the law?

There are situations when the organization’s need for some positions disappears and staffing levels are reduced. Moreover, it is possible that the employee occupying this position works well and is a wonderful person, but... The administration decided that there was no longer a need for, say, a transport manager. How should you act so as not to offend your employee and avoid the sharp corners that a reduction conceals? We will try to give the employer practical recommendations for making the right decisions.

5. There were no obstacles to the dismissal. It must be remembered that it is not allowed to dismiss a person during the period of his temporary disability and during vacation (except in cases of liquidation of the enterprise or termination of activity by the employer - an individual).

Formatting an opinion

The employer must attach to the order to carry out the layoff procedure:

• new staffing schedule;
• notice signed by the employee;
• notification sent to the central control center;
• documents confirming the employee’s refusal of the offered positions;
• certificates proving that the employer took into account the presence/absence of the employee’s preferential right.

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The document of a reasoned opinion does not have a unified template, which allows the trade union organization to draw it up in free form, taking into account all the standards for this type of documentation. It must contain information:

• about the name of the document – ​​“Motivated...”;
• on the name of the trade union organization;
• about the project provided by the employer - the details of the order to carry out the reduction procedure are indicated;
• about the fact and date of consideration by the trade union organization of the submitted order and the documents attached to it, which (do not) confirm the legality of this procedure in accordance with the norms of the current legislation;
• on (not) recognizing the redundancy procedure as completely legal and (not) worsening the employee’s position.

At the end of the document, a summary of the (impossibility of) carrying out the layoff procedure for a specific employee should be summarized.

In order for the document to enter into legal force, the date of drawing up the document, the position and signature with a transcript of the chairman of the trade union organization, as well as similar data of the head of the enterprise must be indicated at the end.

The opinion of the trade union influences the possibility of laying off its members. It is worth considering that the opinion must be motivated. If no shortcomings or violations were found in the project and the layoff plan, the trade union organization will allow the employee to be laid off. Notifying the union is mandatory for any type of dismissal, including staff reduction. The organization is notified within the time limits established by law.

Specifics of notifying the trade union about the upcoming layoff

A trade union (trade union or trade union committee), if it exists at an enterprise, is a voluntarily created organization that, along with the manager, influences the optimization of the work process.

If the company plans to reduce the number of employees, the boss must inform the union about the candidates he wants to reduce 2 months before the start of the process.

The procedure is as follows:

1. First of all, an order is issued to dismiss some workers.
2. After this, it is sent with a list of employees subject to layoffs to the trade union. The committee must learn about the upcoming process at least 2 months in advance.
3. Only after the decision of the members of the trade union committee or its inaction is the notification of workers about staff reductions.

A response from the trade union organization should be received within 7 days. If members of the trade union committee were unable to reach a common opinion within a week, the employer has the right to decide to lay off employees independently.

Due to the fact that the period for consideration of a decision by a professional committee may take up to 7 days, some lawyers believe that its representatives should be notified of the upcoming dismissal earlier than 2 months in advance. Because otherwise the rights of workers may be violated, because, according to Article 81 of the Labor Code of the Russian Federation, workers who will be laid off are notified of this no later than 2 months in advance.

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If it is planned to lay off a large number of workers, then members of the trade union committee are notified no later than 3 months before the expected date.

Nuance! If they are going to fire a trade union committee member, the employer first asks for a reasoned opinion from the trade union committee and only then issues a layoff order. And if the head of the trade union in a branch of the enterprise is to be fired, the decision is made by the bodies of the higher trade union committee.

Union Alert

There is no specific form in which a notice of dismissal should be written to the trade union. Therefore, the same format is usually used as when notifying the employment center.

If it is necessary to lay off those employees who are members of the organization’s trade union committee, the notification form will be slightly different.

It is important to provide information about those employees who are going to be fired and ask the union to confirm the feasibility of the proposed dismissals.

Next you need to proceed as follows:

1. The participants of the trade union committee, after the deadline for determining the response has expired, announce the results of the meeting in writing. If they do not agree with the employer’s opinion, a three-day consultation of the committee will be held together with the management of the organization.
2. If after this no consensus is reached, an appropriate protocol is drawn up. After which, within 10 days, if the trade union committee opposes the dismissal of certain employees, the manager makes a final decision.
3. If his answer contradicts the decision of the trade union, its members, like the laid-off worker, have the right to appeal the results to higher authorities, for example, you can file a complaint with the Labor Inspectorate or file a claim with the district court. The appeal period is 10 days from the date of dismissal.

Notifying the union of a layoff is one of the most important steps in the process of dismissing employees. The manager decides whether to take his opinion into account or not. However, if violations of worker rights are noticed, the authorized body, that is, the trade union committee, can come to the employee’s defense.