Labor Code, N 197-FZ | Art. 189 of the Labor Code of the Russian Federation

Article 189 of the Labor Code of the Russian Federation. Labor discipline and work schedule (current edition)

Labor discipline - compulsory for all employees to comply with the rules of conduct, determined in accordance with this Code, and other federal laws, collective agreement, agreements, local regulations, labor contract.

The employer is obliged in accordance with labor laws and other regulations legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations, labor contracts to create the conditions necessary for employees to comply with labor discipline.

The labor schedule is determined by the internal labor regulations.

Internal labor regulations - a local regulatory act regulating, in accordance with this Code and other federal laws, the procedure for admitting and dismissing employees, the basic rights, obligations and responsibilities of the parties employment contract, work schedule, rest time, incentives and penalties applied to employees, as well as other regulatory issues labor relations from the given employer.

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Commentary on Art. 189 of the Labor Code of the Russian Federation

1. Labor discipline is a necessary condition (element) of any collective labor, regardless of the organizational and legal form of organization and socio-economic relations that have developed in society. Without observing the established rules of conduct, labor discipline, it is impossible to achieve the goal for which a joint labor process is organized.

In accordance with Part 1 of the commented article, labor discipline is compulsory for all employees to comply with the rules of conduct determined in accordance with the Labor Code, other federal laws, collective agreements, agreements, local regulations, and labor contracts.

In the very general view the rules of conduct for employees (their basic rights and obligations) are defined in Art. 21 TC (see comments to it). In each specific organization, these rules are specified in the collective agreement, agreement, local regulations, labor contract.

2. To ensure labor discipline it is necessary to create appropriate organizational and economic conditions for normal production activities... The creation of such conditions is imposed on the employer by Part 2 of the commented article. The duty of the employer, formulated in it in a general form, to create the conditions necessary for employees to observe labor discipline, is specified in other articles of the Labor Code and federal laws, in other regulatory legal acts containing labor law norms, a collective agreement, an agreement, local regulations, and an employment contract. So, in accordance with Part 2 of Art. 22 of the Labor Code, the employer is obliged: to provide employees with work stipulated by the employment contract; provide them with equipment, tools, technical documentation and other means necessary for their execution job responsibilities; ensure safety, health and safety at work; pay employees wages in full and in deadlines; provide employees' representatives with complete and reliable information necessary for the conclusion of a collective agreement, agreement; to provide for the household needs of employees related to the performance of their labor duties, etc. (see comments to it).

3. The obligation of the employee and the employer to observe labor discipline means, first of all, the obligation to comply with the work schedule established by the employer. The labor schedule is determined by the internal labor regulations.

In accordance with Part 4 of the commented article, the internal labor regulations are a local normative act. As a local normative act, the internal labor regulations must be adopted in accordance with the rules established by Art. 8 of the Labor Code (see commentary to it and to Article 190).

The content of the internal labor regulations for each employer is determined in relation to the specific conditions and specifics of his work. However, it must comply with the Labor Code and other federal laws. So, the rights and obligations of employees and the employer should be determined in the internal labor regulations, taking into account the provisions of Art. Art. 21 and 22 TC; the procedure for hiring - in accordance with the requirements of Art. 68 TC. The procedure for dismissing employees must comply with the rules established by Art. Art. 77 - 84, 179 - 181 and other articles of the Labor Code.

The legislator does not limit the content of the internal labor regulations to the provisions directly indicated in Part 4 of Art. 189 TC. They may include other issues that require settlement with the employer. In each specific case, their nature is determined by the employer.

4. Along with the rules of internal labor regulations in some sectors of the economy (rail, sea, river transport; communications, etc.) for certain categories of workers there are statutes and regulations on discipline. In accordance with part 5 of the commented article, the statutes and regulations on discipline are established by federal laws. Currently, until the relevant laws are adopted, the statutes and regulations on discipline, approved by the Government of the Russian Federation, are in force. They provide for increased requirements for certain categories of workers in certain industries. The need to impose higher requirements on them is due to the fact that violation of the rules established by them can entail grave consequences.

For example, the Regulation on the discipline of railway workers of the Russian Federation, approved. By Decree of the Government of the Russian Federation of 08.25.1992 N 621, it was established that in order to ensure the safety of train traffic and shunting work, the safety of transported goods, baggage and other entrusted property, as well as to avoid situations that threaten the life and health of passengers, from employees of enterprises, institutions and railway transport organizations require high organization in work and impeccable performance of work duties. Violation of discipline in railway transport poses a threat to the life and health of people, the safety of train traffic and shunting work, the safety of transported goods, baggage and other entrusted property, and also leads to non-fulfillment of contractual obligations.

The said Regulation applies to all employees of railway transport organizations, regardless of their organizational and legal form and form of ownership, with the exception of employees directly indicated in the Regulation. In particular, it does not apply to employees of housing and communal services and consumer services, workers supply systems, Catering on railway transport (except for employees of restaurant cars), medical and sanitary, educational institutions, etc. By the Decree of the Government of the Russian Federation of 11.10.1993 N 1032, this Regulation, with the exception of certain points, is extended to employees of the subway.

Supreme Court decision: Resolution N 301-AD14-1385, Judicial Collegium for Administrative Cases, cassation

On the basis of paragraph 2 of Article 188 of the Customs Code of the CU, the declarant is obliged to submit the documents to the customs authority during the customs declaration of goods, on the basis of which the customs declaration is completed. Article 189 of the Customs Code of the CU establishes that the declarant is responsible in accordance with the legislation of the member states Customs Union for failure to fulfill the obligations provided for in Article 188 of this Code, as well as for the statement of false information specified in customs declaration, including when making customs authorities decisions to release goods using a risk management system ...

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Therefore, there are three types of disciplinary offenses:

• culpable violation of technological standards by an employee ( technological);
• guilty failure or improper observance by the subject of labor law of the norms of subordination and coordination in the process of labor management ( managerial);
• culpable non-compliance by the subject of the labor relationship with the norms governing work time and rest time ( regime, that is, violating the "working hours" - Art. 100 of the Labor Code of the Russian Federation).

The type of disciplinary offense affects the procedure for establishing circumstances that indicate non-fulfillment or improper compliance by an employee with his job duties.

So, when producing defective products, the employee's fault is established in case of violation of technological standards, absenteeism, being late for work, unproductive use of working time (guilty violation by an employee of working hours). Investigation of managerial misconduct involves the identification of the culprit in the employee's failure to comply with the legal order of the head of the production process.

The employer is obliged to create the conditions necessary for employees to comply with labor discipline. The organization's labor schedule is determined by the internal regulations, which is a local regulatory act of the organization, which regulates the procedure for accepting and dismissing employees, the basic rights, obligations and responsibilities of the parties to the employment contract, working hours, rest time, incentives and penalties.

The obligations of employees listed in the Labor Code are the general obligations of all employees of any organization. Labor responsibilities can be divided into:

1. those that must be performed constantly;

2. those that are executed at the request of the authorized person (timely and accurately execute the orders of the employer);

3.the ones that must be fulfilled upon the occurrence of certain legal facts (submit Required documents when applying for a job).

Labor discipline in organizations, including medical institutions, is ensured by the creation of the necessary organizational, economic conditions for normal work, a conscientious attitude to work, methods of education, as well as encouragement for voluntary work.

For the commission of a disciplinary offense, that is, failure to comply or improper performance by an employee through his fault, the assignment of labor duties to him, the employer has the right to apply the following disciplinary sanctions: remark, reprimand, dismissal on appropriate grounds. Federal laws, statutes and discipline regulations for certain categories of employees may also provide for other disciplinary sanctions. For medical professionals Internal labor regulations as disciplinary action also provides for a transfer to a lower-paid job or displacement to a lower position. They are applied for up to 3 months, taking into account the education and health status of the employee.

It is necessary to distinguish disciplinary sanctions from disciplinary measures that are established by the employer (deprivation of bonuses, not providing benefits).

In order to determine whether an employee has committed a disciplinary offense, it is necessary to analyze its composition. It includes four elements: subject, subjective side, object, objective side.

Subject disciplinary offense - an employee who was in an employment relationship with an employer.

Subjective side- the employee's attitude to his misconduct in the form of guilt. Responsibility occurs if guilt is expressed in the form of intent (the employee was aware that he was committing a violation and wished to commit it) or negligence. Negligence is possible in two forms. A disciplinary offense is considered frivolous if the worker foresaw the possibility of a violation, but presumptuously hoped not to commit it without sufficient grounds. The disciplinary offense is considered negligent. If the employee did not foresee. That he will commit a violation, although he could have foreseen the consequences of his actions (inaction). Violation of labor discipline can be committed both in the form of action and inaction (for example, the employee did not fulfill his duty).

Object of disciplinary misconduct- this is what the violator encroaches on, what he does harm. These include the rights and obligations of the parties to the labor relationship, the interests of the state, the employer's property, the requirements of the internal regulations, etc.

Objective side a disciplinary offense is expressed in action or inaction, the occurrence of adverse consequences. An indispensable element of the objective side is the causal relationship between the offense and harmful consequences. The objective side also includes the time, place and other circumstances of the commission of the offense.

Before a disciplinary action is taken, the employer must request a written explanation from the employee. If the employee refuses to provide an explanation, an appropriate act is drawn up. Disciplinary action shall be applied no later than one month from the day the offense was discovered. Only one disciplinary sanction may be applied for each disciplinary offense. The employer's order on the application of a disciplinary sanction is announced to the employee against receipt within 3 days from the date of its publication (Article 193 of the Labor Code of Russia).

The norms of administrative law regulate the activities of executive bodies, establishing the procedure for their formation, the competence of bodies, the rights, duties and responsibilities of civil servants. Russia, as a federal executive body, manages health care institutions through the norms of administrative law, which are contained in orders, instructions, and regulations.

Administrative liability is a type of legal liability, which consists in the fact that a management body or its official applies administrative measures to a person who has committed an administrative offense. Administrative responsibility is established by the Code of Administrative Offenses of the Russian Federation and other regulations that came into force on July 1, 2002.

Various executive authorities, bodies local government, their officials, judges. Administrative penalties, as opposed to disciplinary ones, are applied by bodies and officials against persons not subordinate to them for work or service.

The basis for bringing to administrative responsibility is an administrative offense, which is an unlawful, guilty act or omission of a physical or legal entity, for which the legislation establishes administrative responsibility.

To bring to administrative responsibility it is necessary that the committed unlawful act contains signs of a specific corpus delicti of an administrative offense provided for by the Code of Administrative Offenses. Chapter 6 of the Administrative Code contains offenses that infringe on health, sanitary and epidemiological well-being of the population and public morality. These are such offenses as concealment of the source of HIV infection, venereal disease (Article 6.1), violation of legislation in the field of ensuring the sanitary and epidemiological well-being of the population (Article 6.4), prostitution (Article 6.1), etc.

The subject of an administrative offense under Art. 6.2 of the Code (illegal engagement in private medical practice, private pharmaceutical activity or traditional medicine) can be medical and pharmaceutical workers dealing with professional activities without a license or violating the order of practicing folk healing.

New edition of Art. 189 of the Labor Code of the Russian Federation

Labor discipline - compulsory for all employees to comply with the rules of conduct determined in accordance with this Code, other federal laws, collective bargaining agreements, agreements, local regulations, labor contracts.

The employer is obliged, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, to create the conditions necessary for employees to comply with labor discipline.

The labor schedule is determined by the internal labor regulations.

Internal labor regulations - a local normative act regulating, in accordance with this Code and other federal laws, the procedure for admitting and dismissing employees, the basic rights, obligations and responsibilities of the parties to an employment contract, working hours, rest time, incentives and penalties applied to employees, and also other issues of regulation of labor relations with this employer.

Commentary on Article 189 of the Labor Code of the Russian Federation

Article 189 of the Labor Code of the Russian Federation defines labor discipline and internal labor regulations. According to this article, discipline is compulsory for all employees to comply with the rules of conduct determined in accordance with the labor legislation of our country. Internal labor regulations are a local regulatory act governing the procedure for hiring and dismissing employees, the basic rights, obligations and responsibilities of the parties to an employment contract, work hours and rest times, incentives and penalties for personnel, as well as other issues of regulating labor relations in a particular company. The employer is obliged to create the conditions necessary for employees to comply with labor discipline.

Another commentary on Art. 189 of the Labor Code of the Russian Federation

1. The concept of labor discipline, formulated in the commented article, as a whole, reflects the essence of the employee's duty to comply with certain rules of conduct in the labor process. The content of labor discipline is the subordination of the employee to the requirements of labor legislation, the terms of the employment contract and the orders of the employer based on them. In the most general form, the duties of the employee are defined in the provisions of Part 2 of Art. 21 of the Labor Code of the Russian Federation (see commentary). The very essence of labor relations determines the obligation of the employee to comply with the orders of the employer as the owner of the means of production.

2. Labor discipline includes the mutual rights and obligations of the employer and the employee. The employer is obliged to create appropriate conditions for the observance of labor discipline: the organization must have a system of local regulations containing instructions on the rules of behavior of employees in the labor process. This system of acts includes job descriptions, qualification characteristics employees, shift schedules, vacation schedule, etc. The most important of the local regulations in terms of focus on ensuring labor discipline are the internal labor regulations. In terms of their importance and place in the regulation of labor relations, they are correlated with the collective agreement. All other local regulations can serve as appendices to the named two acts, which form the basis of local legal regulation.

3. The internal labor regulations should include norms on the procedure for hiring, indicating which of officials the employer has the right to endorse and sign an employment contract, which documents, depending on the position or work performed, must be submitted when applying for a job (see article 65 of the Labor Code of the Russian Federation and a commentary to it).

4. The internal labor regulations should establish the procedure for dismissing employees, which determines the procedure for filing an application for dismissal at the initiative of the employee, the procedure for signing a bypass sheet (if any), submitting material values used by the employee, etc. In particular, the internal labor regulations should regulate the application of incentives and disciplinary measures to employees (see Art. Art. 191, to them).

5. The consolidation of the rights and obligations of the employer and the employee in the internal labor regulations is based on the provisions of Art. Art. 21 and 22 of the Labor Code of the Russian Federation (see the commentary), and no more detailed specification is carried out.

6. The rules of the internal labor schedule should contain norms on the operating mode of the organization: the beginning of work and its end; time of breaks in work. In case of multi-shift work, it is advisable to formalize shift schedules as independent acts or to attach them to the internal labor regulations (see Article 103 of the Labor Code of the Russian Federation and a commentary to it).

7. The maintenance and strengthening of labor discipline is facilitated by the extremely clear consolidation of provisions on the time of rest. It is advisable to establish local norms on the duration of basic and additional leaves for groups of workers in a collective agreement, and on the beginning and duration of breaks during the working day - in the internal labor regulations.

8. In the recent period, in addition to the internal labor regulations, such local regulations as the rules of conduct for employees of an organization have become widespread, where corporate rules are enshrined that are more ethical than legal. These include rules regarding appearance employees, their clothing, the order of communication between employees and with visitors (clients, patients, etc.). In this case, blanket norms referring to the named local acts are formulated in the internal labor regulations.

9. In organizations of certain sectors of the economy, along with the internal labor regulations, there are statutes and regulations on employee discipline. The presence of these acts is due to the particular complexity of the labor of workers in these industries and increased requirements to their observance of labor discipline. For example, non-observance of labor discipline by railway or sea transport workers under certain circumstances can cause serious man-made accidents. Therefore, along with the disciplinary measures established Labor Code, some additional measures may be applied to workers in these industries, provided for by the statutes and regulations on discipline (see Art. 192 of the Labor Code of the Russian Federation and the commentary to it). But at the same time, the charters and regulations on the discipline of workers in certain industries provide for additional types of incentives that can be applied for conscientious observance labor duties (see Art. 191 of the Labor Code of the Russian Federation and the commentary to it).

10. The following disciplinary statutes, statutes and discipline regulations are currently in force:

Regulations on the discipline of railway workers Russian Federation, approved by the Decree of the Government of the Russian Federation of August 25, 1992 N 621 (SAPP RF. 1992. N 9. Art. 608). In accordance with the Decree of the Government of the Russian Federation of October 11, 1993 N 1032 (SAPP RF. 1993. N 42. Art. 4008) the effect of this Regulation is extended to the regulation of the labor of metro workers;

Disciplinary charter of paramilitary mine rescue units in transport construction, approved by the Government of the Russian Federation of July 30, 1994 N 879 (SZ RF. 1994. N 17. Art. 1979);

Disciplinary charter of paramilitary mine rescue units for servicing mining enterprises of the metallurgical industry, approved by the Government of the Russian Federation of January 16, 1995 N 47 (SZ RF. 1995. N 4. Art. 310);

Disciplinary charter customs service Of the Russian Federation, approved by the Decree of the President of the Russian Federation of November 16, 1998 N 1396 (SZ RF. N 47. 1998. Art. 5742);

Charter on the discipline of employees of organizations with especially hazardous production in the field of use atomic energy, approved by the Decree of the Government of the Russian Federation of July 10, 1998 N 744 (SZ RF. 1998. N 29. Art. 3557);

Charter on the discipline of maritime transport workers, approved by the Decree of the Government of the Russian Federation of May 23, 2000 N 395 (SZ RF. 2000. N 22. Art. 2311);

Charter on the discipline of workers in the fishing fleet of the Russian Federation, approved by the Government of the Russian Federation of September 21, 2000 N 708 (SZ RF. 2000. N 40. Art. 3965);

Charter on the discipline of crews of support vessels of the Navy, approved by the Government of the Russian Federation of September 22, 2000 N 715 (SZ RF. 2000. N 40. Art. 3966).

11. Charters and discipline regulations may not apply to all workers in the industry, but only to those whose actions are likely to cause increased harm. Thus, the Ministry of Transport of the Russian Federation, by Order No. 89 of August 25, 2000, approved the List of employees who are subject to the Charter on the discipline of maritime transport workers, including employees of key positions. On the other hand, discipline statutes can be cross-sectoral in nature, i.e. apply to workers employed in the same jobs, but in different industries. The Ministry of General and Vocational Education of the Russian Federation, by Order No. 2220 of August 25, 1998, extended the Charter on the discipline of workers in organizations with especially hazardous production in the field of atomic energy use to a number of employees of educational institutions whose work is related to the use of atomic energy sources.

Option no.X.

Features of labor regulation of persons working for employers-individuals, individual entrepreneurs (conclusion and termination of an employment contract; working hours and rest time; wages and work rationing; disciplinary and material responsibility).

Answer:

Peculiarities labor regulation of persons working for employers, individuals, individual entrepreneurs, are determined by Chapter 48 of the Labor Code of the Russian Federation (hereinafter referred to as the TC). When concluding an employment contract with an employer - an individual, the employee undertakes to perform work not prohibited by the Labor Code or other federal law, as defined by this contract. A written employment contract necessarily includes all the conditions that are essential for the employee and for the employer. An employer who is an individual is obliged to: conclude an employment contract with an employee in writing; pay insurance premiums and other obligatory payments in the order and in the amount determined by federal laws; to issue insurance certificates of state pension insurance for persons entering work for the first time. The mode of work, the procedure for granting days off and annual paid vacations are determined by agreement between the employee and the employer - an individual. At the same time, the duration of the working week cannot be longer, and the duration of the annual paid leave is less than the established Labor Code. An individual employer shall notify the employee in writing about the change in the terms of the employment contract determined by the parties, at least 14 calendar days in advance. At the same time, an employer who is an individual who is an individual entrepreneur has the right to change the terms of the employment contract determined by the parties only if these conditions cannot be maintained for reasons related to changes in the organizational or technological working conditions. In addition to the grounds provided for by the Labor Code, an employment contract with an employee working for an employer - natural person, may be terminated on the grounds provided for by the employment contract. The terms of the notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments paid upon termination of the employment contract are determined by the employment contract. Disciplinary and material responsibility is determined in a general manner.

Employment contract no.

_________________ "__" ________ 201_

Individual entrepreneur________________________________________,

(Full Name)

acting on the basis of a certificate of state registration __________________________________________________________________________,

(number, date)

hereinafter referred to as the "Employer", and ______________________________________________,

(Full Name)

hereinafter referred to as the "Employee", have entered into this agreement as follows.