Russian labor legislation prohibits discrimination against employees based on wages and obliges the employer to provide equal pay for work of equal value. At the same time, remuneration is a subtle tool for regulating labor relations. For example, if an organization employs several accountants and their staffing schedules and employment contracts indicate different salaries or a salary range (range from minimum to maximum). Is this a violation of labor laws? Of course, it is, since Art. 22 of the Labor Code of the Russian Federation provides for the employer the obligation to provide employees with equal pay for work of equal value. But what to do if accountants have different amounts of work or different areas?
What does the salary consist of?
According to Art. 129 of the Labor Code of the Russian Federation, wages (employee remuneration) consists of three parts:
1. Remuneration for labor depending on the qualifications of the employee, complexity, quantity, quality and conditions of the work performed, the so-called fixed/constant part (salary, tariff rate, etc.).
2. Compensation payments, i.e. additional payments and allowances of a compensatory nature, including for work in conditions deviating from normal, work in special climatic conditions and in territories exposed to radioactive contamination, as well as other payments of a compensatory nature.
3. Incentive payments developed in a specific organization, namely:
- surcharges and allowances;
- bonuses and other incentive payments.
What does “work of equal value” mean?
In Art. 2, 3 of the Labor Code of the Russian Federation reveals the content of the principle of prohibition of discrimination, and Art. 64 of the Labor Code of the Russian Federation formulates prohibitions of discrimination in hiring, including wages.
The employment contract of each employee must include mandatory conditions (Article 57 of the Labor Code of the Russian Federation), including:
- labor function;
- terms of remuneration, including the size of the tariff rate or salary (official salary) of the employee;
- additional payments;
- allowances;
- incentive payments.
In this case, “work of equal value” means that workers perform the same functions and the same amount of work.
Labor function is work in a position in accordance with the staffing table, profession, specialty, specified qualifications; the specific type of work assigned to the employee. Consequently, the staffing table should indicate, for example, this: position - “accountant”, number of staff units - “5”, tariff rate (salary) - 40,000 rubles. Subject to these conditions, the principle of equal pay for work of equal value is respected.
As for the amount of work, it can be calculated:
- by time of execution (time payment);
- by quantity of products (piecework payment);
- by the quantity of goods or services sold (commission payment);
- based on the result of labor/finished product (accord payment).
If the working hours differ from the working hours of other employees performing the same functions (for example, overtime or work on a day off), then the remuneration will be different.
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View |
Act |
Type of punishment |
Document |
| Material | Pay discrimination | The employer is obliged to pay the employee an amount with interest (monetary compensation) in the amount of not less than 1/150 of the current key rate of the Central Bank of the Russian Federation of the amounts not paid on time for each day of delay, starting from the next day after the established payment deadline, up to and including the day of actual payment | Art. 236 Labor Code of the Russian Federation |
| The employee is compensated in cash for moral damage caused to him by unlawful actions or inaction of the employer. | Art. 237 Labor Code of the Russian Federation | ||
| Administrative |
Non-payment or incomplete payment on time of wages, other payments made within the framework of labor relations, if these actions do not contain a criminal offense, or setting wages in an amount less than the amount provided for by labor legislation |
Warning or imposition of an administrative fine on officials - from 10,000 to 20,000 rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from 1,000 to 5,000 rubles; for legal entities - from 30,000 to 50,000 rubles. |
part 6 art. 5.27 Code of Administrative Offenses of the Russian Federation |
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Committing an administrative offense under Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, by a person previously subjected to administrative punishment for a similar offense, if these actions do not contain a criminal offense |
Imposition of an administrative fine on officials - from 20,000 to 30,000 rubles. or disqualification for a period of 1 to 3 years; for persons carrying out entrepreneurial activities without forming a legal entity - from 10,000 to 30,000 rubles; for legal entities - from 50,000 to 100,000 rubles. |
part 7 art. 5.27 Code of Administrative Offenses of the Russian Federation |
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| Criminal |
Partial non-payment of wages, pensions, scholarships, allowances and other payments established by law for more than three months, committed out of selfish or other personal interest of the head of the organization, employer |
Fine up to 120,000 rubles. or in the amount of salary or other income of the convicted person for a period of up to 1 year, or deprivation of the right to hold certain positions or engage in certain activities for a period of up to 1 year, or forced labor for a period of up to 2 years, or imprisonment for a term of up to 1 year |
Part 1 Art. 145.1 Criminal Code of the Russian Federation |
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Non-payment of wages, pensions, scholarships, allowances and other payments established by law for more than two months, or payment of wages for more than two months in an amount below the minimum wage established by law, committed out of selfish or other personal interest of the employer |
Fine from 100,000 to 500,000 rubles. or in the amount of salary or other income of the convicted person for a period of up to 3 years, or forced labor for a period of up to 3 years with or without deprivation of the right to hold certain positions, engage in certain activities for a period of up to 3 years |
Part 2 Art. 145.1 of the Criminal Code of the Russian Federation |
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Acts provided for in Parts 1 and 2 of Art. 145.1 of the Criminal Code of the Russian Federation, if they entailed grave consequences |
Fine from 200,000 to 500,000 rubles. or in the amount of salary or other income of the convicted person for a period of 1 to 3 years, or imprisonment for a term of 2 to 5 years with deprivation of the right to hold certain positions or engage in certain activities | Part 3 Art. 145.1 of the Criminal Code of the Russian Federation |
Example
The employee filed a claim with the Beloretsky Interdistrict Court of the Republic of Bashkortostan against Bashkirenergo LLC for the recovery of wages and recognition of the wage conditions as discriminatory, citing the fact that he worked as an electrician of the operational field team at the Beloretsk group of substations and faced gross labor violations legislation on the part of Bashkirenergo LLC regarding the distribution of wages, which it regards as discriminatory measures against employees.
Thus, employees of the same division of Bashkirenergo LLC, performing the same production tasks and servicing facilities in the city of Beloretsk and the Beloretsk region, due to different rates, received wages that differed from the salaries of those who work in the Mezhgorye region. At the same time, the workers servicing the facilities of Beloretsk and Mezhgorye had the same job descriptions, the same qualifications, requirements for the performance of work and a single collective agreement signed by employees of the same head unit represented by the OPS of the Substation Department (PO BCES), and received different wages.
From the presented comparative table on wages, it is clear that the volume and complexity of the work performed by an electrician of the operational team of the Beloretsk group of substations is greater than that of a specialist of the same position of the team of the Tatlin group of substations (where the plaintiff works).
The court considered that the plaintiff confuses concepts such as “differentiation” and “discrimination” in wages, since discrimination does not mean the establishment of differences, exceptions, preferences, as well as restrictions on the rights of an employee, which are determined by the requirements inherent to this type of work established by federal law ( Part 3 of Article 3 of the Labor Code of the Russian Federation). As a result, the plaintiff’s claims were denied (Decision of the Beloretsk Interdistrict Court of the Republic of Bashkortostan in case No. 2-2632/2017 dated December 6, 2017).
A comment
Despite the fact that the workers have the same job descriptions, the same qualifications and requirements for performing work, the employer paid different wages, since the workers have different volumes and complexity of the work performed. Remuneration will also differ in the case where the working hours of a particular employee differ from the working hours of other employees performing the same functions (for example, overtime or work on days off).
What liability is provided for violation of wage requirements?
Violation of wage legislation provides for three types of liability (Table 1).
Situation
A representative of Darasunsky Rudnik LLC filed an appeal against the decision of the Tungokochensky District Court of the Trans-Baikal Territory dated July 3, 2017, since the court decided in favor of the employee and ordered to recover from Darasunsky Rudnik LLC:
In favor of the plaintiff, underaccrued and unpaid wages for the period from 10/01/2016 to 04/30/2017 in the amount of RUB 92,169.25;
Compensation for moral damage in the amount of 5,000 rubles;
State duty for local budget revenue in the amount of RUB 3,265.08.
Such measures were taken due to the fact that the employee’s salary was unreasonably reduced due to the application of an underestimated labor participation coefficient (LFC) to accrued wages, and not to the variable part of wages, as provided for in the Regulations on remuneration and bonuses for employees LLC "Darasun Mine"
The decision of the Tungokochensky District Court of the Trans-Baikal Territory dated July 3, 2017 was left unchanged, the appeal was not satisfied (Appeal ruling of the Trans-Baikal Regional Court in case No. 33-6261/2017 dated 12/06/2017).
- Concept, subject, method and system of labor law
- The concept of the right to work in its historical development
- Regulation of labor at various stages of social development
- Regulation of labor at various stages of social development - page 2
- Regulation of labor at various stages of social development - page 3
- The concept of labor law as a branch of law
- Subject of labor law
- Labor law method
- System of the branch of labor law
- Scope of labor law norms
- Legally significant circumstances in labor law
- The relationship between labor law and other related industries
- Subject, methods and system of the science of labor law
- Goals and objectives of labor legislation
- Functions of labor law
- Sources of labor law
- The concept of sources of labor law and their features
- Classification of sources of labor law
- Unity and differentiation of legal regulation of labor relations
- Factors of differentiation
- Federal, regional, local and local regulation of labor relations
- The Constitution of the Russian Federation in the system of sources of labor law
- The Constitution of the Russian Federation in the system of sources of labor law - page 2
- International legal regulation of labor
- International legal regulation of labor - page 2
- Federal laws and regulations in the system of sources of labor law
- Federal laws and regulations in the system of sources of labor law - page 2
- Laws and by-laws of the constituent entities of the Russian Federation in the system of sources of labor law
- Laws and by-laws of the constituent entities of the Russian Federation in the system of sources of labor law - page 2
- The role of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in regulating labor relations
- The role of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation in regulating labor relations - page 2
- Regulatory legal acts of local government bodies
- Agreements, collective agreements, other local acts of the organization as sources of labor law
- Principles of labor law
- The concept of legal principles and their types
- Industry principles of labor law
- Industry principles of labor law - page 2
- Industry principles of labor law - page 3
- Industry principles of labor law - page 4
- Principles of labor law institutions
- Principles of labor law institutions - page 2
- Correlation of general, inter-industry, sectoral and intra-industry principles
- Implementation of the principles of labor law through the rights and obligations of subjects
- Subjects of labor law
- The concept of subjects of labor law
- Classification of subjects of labor law
- Legal status of subjects of labor law
- Citizens as subjects of labor law
- Citizens as subjects of labor law - page 2
- Employers as subjects of labor law
- Employers as subjects of labor law - page 2
- Employee representatives as subjects of labor law
- Representatives of employers as subjects of labor law
- Russian tripartite commission for regulation of social and labor relations
- Bodies of state power and local self-government as subjects of labor law
- Jurisdictional bodies as subjects of labor law
- Trade union rights at work
- The concept of trade unions, the right to join trade unions
- Protection of labor rights of workers by trade unions
- Protection of labor rights of workers by trade unions - page 2
- Basic rights of trade unions, their classification
- Basic rights of trade unions, their classification - page 2
- Basic rights of trade unions, their classification - page 3
- Guarantees for the exercise of trade union rights
- Guarantees for the exercise of trade union rights - page 2
- Labor Relations
- System of relations in labor law
- Concept, content and subjects of labor relations
- Concept, content and subjects of the labor relationship - page 2
- Concept, content and subjects of the labor relationship - page 3
- The difference between the labor relationship and other relationships that arise when using labor
- General characteristics of employment relationships
- Relations on labor organization and labor management
- Relations on professional training, retraining and advanced training
- Relations regarding collective bargaining, concluding collective agreements and agreements
- Relations regarding the participation of workers and trade unions in establishing working conditions and applying labor legislation
- Relations regarding financial liability of employees and employers
- Relations regarding compulsory social insurance of employees
- Relations to supervise compliance with labor laws
- Relations for resolving individual labor disputes
- Relations for the settlement of collective labor disputes
- Relations for self-defense of labor rights
- Collective agreements and agreements
- Scope of legislation on collective agreements and agreements
- Principles of concluding and developing collective agreements and agreements
- Principles of concluding and developing collective agreements and agreements - page 2
- Registration of powers during collective bargaining
- Registration of powers during collective bargaining - page 2
- Registration of powers during collective bargaining - page 3
- The concept of a collective agreement, its parties and executing entities
- The concept of a collective agreement, its parties and executing entities - page 2
- The procedure for concluding and validity of a collective agreement
- Structure and content of the collective agreement
- Russian tripartite commission for the regulation of social and labor relations: formation procedure and main areas of activity
- Russian tripartite commission for the regulation of social and labor relations: formation procedure and main areas of activity - page 2
- Russian Tripartite Commission for the Regulation of Social and Labor Relations: formation procedure and main areas of activity - page 3
- Russian Tripartite Commission for the Regulation of Social and Labor Relations: formation procedure and main areas of activity - page 4
- Structure and content of agreements
- Monitoring the implementation of collective agreements and agreements
- Monitoring the implementation of collective agreements and agreements - page 2
- Correlation of legislation with the provisions of collective agreements and agreements
- The relationship between legislation and the provisions of collective agreements and agreements - page 2
- Responsibility for violation of legislation on collective agreements and agreements
- Employment and employment
- General characteristics of employment legislation
- The concept of employment and busy citizens
- The concept of employment and busy citizens - page 2
- The concept of an unemployed citizen
- The concept of an unemployed citizen - page 2
- Legal status of an unemployed citizen
- Concept of suitable job
- Procedure and terms for payment of unemployment benefits
- Procedure and terms for payment of unemployment benefits - page 2
- Vocational training, retraining and advanced training of unemployed citizens
- Rights and responsibilities of employment service bodies in the field of labor
- Promoting employment of citizens in need of special social protection
- Public works concept
- The concept of mass dismissal and its legal consequences
Industry principles of labor law - page 2
2.6. The principle of paying equal wages for work of equal value. This principle follows both from the content of international legal norms and from Art. 29 of the Labor Code of the Russian Federation, obliging employers to provide equal pay for work of equal value.
- the presence of equal rights and equal opportunities to receive equal remuneration while meeting the same labor standards
- absence of differences not provided for by law when establishing different amounts of remuneration for workers
The listed legally significant circumstances are subject to verification when making legal decisions on the amount of an employee’s salary; their proof allows us to conclude that the salary is paid to the employee without violating this rule-principle.
In practice, this norm-principle is violated by establishing different wages for employees who are on the staff of the organization and removed from the staff due to the upcoming dismissal due to staff reduction, although the employees perform the same functional duties and the same amount of work.
When such situations arise, the norm-principle in question is violated, which allows employees receiving a lower salary to demand its payment in an amount equal to those on the organization’s staff.
2.7. Prohibition of discrimination in the regulation of labor relations. This principle is enshrined in various regulatory legal acts, as well as in Art. 3 Labor Code of the Russian Federation. From the content of this norm-principle, the following legally significant circumstances should be highlighted:
- availability of equal opportunities to exercise labor rights
- absence of restrictions and advantages depending on circumstances prohibited or not provided for by law
- establishing differences, exceptions, preferences, as well as restrictions on the rights of employees only on the grounds established by federal law
It should be remembered that in Part 2 of Art. 3 of the Labor Code of the Russian Federation and other regulatory legal acts provides a non-exhaustive list of circumstances, the proof of which allows us to conclude that there is discrimination in the regulation of labor relations. Such circumstances may include others not provided for by federal law.
At the same time, in Part 3 of Art. 3 of the Labor Code of the Russian Federation exhaustively defines the possibilities for establishing differences, exceptions, preferences and restrictions in the regulation of labor relations. Their introduction is possible if the following legally significant circumstances are proven:
- the presence of conditions for establishing differences, exceptions, preferences and restrictions in the regulation of labor relations only in federal law
- establishment of the specified conditions in connection with the requirements inherent in this work or due to the special protection of the state for persons in need of increased social and legal protection
The proof of the listed legally significant circumstances allows us to conclude that there is no discrimination in the legal regulation of labor relations, and conversely, the lack of proof of any of these circumstances allows us to speak about the presence of discrimination against employees.
2.8. The presence of associations for the protection of rights and interests in the process of labor activity. Workers and employers have the right, in accordance with current legislation, to create associations to protect rights and interests in the process of work.
The implementation of this right occurs through established state guarantees that ensure the creation, independence of activity and exceptional grounds for termination of the activities of the named associations of workers and employers. Such state guarantees constitute the content of this principle.
When making legal decisions, these guarantees act as legally significant circumstances for making decisions on the creation of these associations, non-interference in their activities and when making decisions on terminating the activities of public associations.
2.9. Participation of employees in the management of the organization. In accordance with Art. 52 of the Labor Code of the Russian Federation, the right of employees to participate in the management of an organization directly or through their representatives is regulated by the Labor Code of the Russian Federation, federal laws, constituent documents of the organization, and a collective agreement.
Consequently, the implementation of this principle is associated with the guarantees established in the listed regulatory legal acts. These guarantees should act as legally significant circumstances when translating the principle in question into specific relationships.
Currently, the principle of employee participation in the management of the organization is inactive, since the legislation does not provide for either forms or guarantees of such participation. In this connection, its implementation can occur exclusively through local acts of the organization under the control of the employer. Although the participation of employees in the management of the organization can contribute to the implementation of the principle of fair and decent wages.
One of the forms of such participation may be the distribution of the organization’s profits with the consent of the representative body of workers. In this case, there is hope that a decent amount of profit will be allocated to pay workers. Whereas now employees, as a general rule, receive no more than 5 percent of the organization’s profits.
While partners, which should be employees and employers, apparently should have equal rights in the distribution of profits. Otherwise, the so-called partnership turns into an empty phrase.
Pages: 1 2 3 4
New edition of Art. 132 Labor Code of the Russian Federation
The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and is not limited to the maximum amount, except for the cases provided for by this Code.
Any kind of discrimination in establishing or changing wage conditions is prohibited.
Commentary on Article 132 of the Labor Code of the Russian Federation
The application of Articles 3 and 132 of the Labor Code of the Russian Federation together gives grounds to assert: discrimination in wages is prohibited depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence, attitude to religion , political beliefs, membership or non-membership in public associations, as well as other circumstances not related to the employee’s business qualities.
The positive aspect of Part 2 of Article 132 of the Labor Code of the Russian Federation is the prohibition of discrimination not only when establishing, but also when changing the size and other conditions of remuneration. Every organization must ensure equal pay for equal work at all times. This principle is often violated in organizations where staff reductions are planned: by increasing wages for those who will continue to work in the future, the employer leaves the same salary (tariff rate) to persons warned about the upcoming dismissal for the two months that must pass from the date of the warning about dismissal before the day of termination of the employment contract. As a result, the dismissed employee receives smaller amounts not only in the form of wages, but also when making guarantee payments to him - severance pay, average earnings for two to three months after dismissal (Articles 178 and 180 of the Labor Code of the Russian Federation) and unemployment benefits . This occurs due to the fact that when calculating average earnings, the calculation takes into account his reduced (compared to employees of the same professions and positions) wages. In such cases, the employee has the right to appeal the employer’s actions in accordance with the procedure established by law.
Another comment on Art. 132 Labor Code of the Russian Federation
1. Article 132 establishes one of the principles of regulation of wages - payment depending on the quantity and quality of work without any discrimination. Its provisions correspond to the law, which establishes, as a principle of legal regulation of labor relations, ensuring the right of every employee to fair pay; Art. 21 of the Labor Code, which establishes the employee’s right to wages in accordance with his qualifications, complexity of work, quantity and quality of work performed; Art. 22 of the Labor Code, which establishes the employer’s obligation to provide employees with equal pay for work of equal value.
2. To establish the dependence of an employee’s salary on his qualifications, the complexity of the work performed, the quantity and quality of labor, tariff systems of remuneration are used (see Article 143 of the Labor Code of the Russian Federation and the commentary thereto).
3. In Art. 132 of the Labor Code of the Russian Federation contains an important rule that the wages of employees are not limited to the maximum amount. In conditions where the state does not use methods of direct regulation of wages and its size is entirely determined by the results of labor, the normative establishment of the maximum wage is impossible.
4. Part 2 art. 132 prohibits any kind of discrimination in setting and changing wages and other conditions of remuneration, which meets the requirements of ILO Convention No. 111 regarding discrimination in labor and occupation (ratified by the USSR by Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961 / / USSR Air Force, 1961, No. 6, Article 58). This means that it is prohibited to establish restrictions and advantages in the field of remuneration depending on any circumstances not related to the business and professional qualities of the employee - gender, race, skin color, nationality, language, origin, property, social and official status, age , place of residence, attitude to religion, political beliefs, membership or non-membership of public associations, etc. At the same time, the business and professional qualities of the employee (qualifications, quantity and quality of work, professional characteristics, the presence of additional professional skills used in work, responsible attitude to job responsibilities, etc.) not only can, but should also be included in basis for differentiation of wages.
5. Discrimination in the field of wages should be understood not only as the establishment of any restrictions, but also as the establishment of advantages not in connection with the business and professional qualities of the employee. Based on this, the legislator’s decision should be recognized as correct to establish payment for minor workers employed on short-time working hours, taking into account the duration of their work (with time-based payment) or the quantity of products produced (with piece-rate payment), since otherwise these persons would be provided with benefits according to sign of age.
Some employees, especially those who have already quit, go to court with a claim to eliminate discrimination and recover the “underpaid” difference in wages. Although, in general, such claims are not successful in the courts, nevertheless, the employer has to seriously prepare for such processes and prove his case with a large volume of documents. This article talks about how an employer should act correctly to avoid losing in court in such a case.
Prohibition of wage discrimination
Article 3 of the Labor Code of the Russian Federation contains a ban on discrimination in the sphere of labor: no one can be given preferences that are not related to business qualities of the employee. Article 21 of the Labor Code of the Russian Federation says the following: “ The employee has the right to timely and full payment of wagesin accordance with your qualifications, complexity of work, quantity and quality of work performed " Articles 22 and 132 of the Labor Code of the Russian Federation contain the employer’s obligation to provide employees with “ equal pay for work of equal value".
Thus, the employer must provide both fair remuneration for work and individual remuneration based on the employee’s business qualities. But it is quite difficult to accurately evaluate in money an employee’s business qualities and the quality of the work he performs. With quantity, of course, it is easier, but only where it can be calculated in standard units - how many parts were produced, how many hectares of field were plowed, and the like. Where the work is more creative and less standardized, it is much more difficult to assess its quantity, and even more so its quality. How to evaluate the work of a PR manager, marketing analyst, lawyer?
The greatest debate is caused by the situation when wages are fixed and vary among workers for the same positions. The position of the Federal Labor Service on this issue is set out in letter No. 1111-6-1 dated April 27, 2011 and represents the simplest way of an individual approach to assessing the work of specific employees: it is necessary to divide the fixed wage into salary and various kinds of “allowances”.
The Supreme Court also speaks out on this issue in the Determination of the Judicial Collegium for Civil Cases dated October 14, 2005 No. 5-B05-120. The essence of the precedent is that the employer decided to transfer the flight crew to fixed-term individual employment contracts. For those pilots who agreed to enter into fixed-term employment contracts, the rate for flight hours was set higher than for those who refused such contracts. The organization's wage regulations included this distinction. The court states in its ruling: “ Paying plaintiffs less wages for equal work than other workers performing the same work, simply because they did not sign individual employment agreements (contracts) with a limited duration, is a type of discrimination in pay for equal work and violates plaintiffs' constitutional rights", and cancels the judicial acts of lower authorities, which denied the plaintiffs' claim.
The Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 22, 2006 No. 5-B06-110 sets out a similar position. Thus, the plaintiff was fired and then reinstated, after which she was given a reduced salary. The court states: " Giving the plaintiff less pay for equal work than other senior experts in the department who had the same salary before her dismissal and performing the same work, only because she was subject to dismissal due to staff reduction, is one of the types of discrimination in pay for equal work. labor violates the plaintiff’s constitutional rights" In this regard, the claims were ultimately satisfied.
Justification for the difference in wages
Let's look at specific examples to see what ways there are to justify differences in wages.
1. Employees are in the same positions, have equal qualifications, they have the same responsibilities, but their business qualities are different, therefore the salaries and salary bonuses are different.
Typically, in such a situation, which occurs quite often, employers do not go into the subtleties of the differences between employees and set the same fixed salary. In addition, a more efficient employee can always be rewarded with a bonus.
A more difficult way is to carefully analyze and compare the business qualities of employees, which will make it possible to consolidate this difference in the form of a fixed payment, without issuing orders each time to award bonuses to the most productive employees.
To do this, the company can use a system of position levels, classes, grades, etc., which allows, within one position, to classify employees according to certain criteria: grades, classes, ratings, assessments. This is permissible under labor legislation, since it is a remuneration system in accordance with Article 135 of the Labor Code of the Russian Federation. Employees are classified according to their business qualities, including through certification. An example of this approach is contained in Decision of the Isakogorsky District Court of the city of Arkhangelsk dated May 28, 2012 in case No. 2-169/2012.
The plaintiff and his colleague were 8th grade electricians, performed the same job duties, and their salaries were different. According to the plaintiff, this was a violation and discrimination, and therefore he demanded payment of the difference between his salary and the salary of his colleague. However, different salaries for the two electricians were set for a reason. The company introduced a new remuneration system, and therefore adopted a methodology for establishing official salaries. The methodology provided for a point assessment of the business qualities of employees, carried out by a special commission based on developed criteria. The business qualities of electricians were assessed according to three criteria: length of service in the position, professional knowledge and skills, and quality of performance of official duties. According to these criteria, the plaintiff scored lower than his colleague, who had longer experience and performed his work better. Since the plaintiff considered the commission’s assessment of his business qualities to be biased, the court questioned witnesses who interacted with both employees. Witnesses confirmed that although both employees perform work of the same complexity, the plaintiff’s colleague performs his work better, has more experience, and employees prefer to contact him more often than the plaintiff.
The court made the following conclusions:
- establishing the official salary is the right of the employer, is determined by the employment contract and depends not only on the qualifications of the employee, but also on the complexity of the work performed, the quantity and quality of labor expended;
- work in the same position does not mean the same volume, complexity and quantity; the employer has the right to individually determine the amount of remuneration;
- the establishment of different salaries was determined by the business qualities of each employee;
- an individual approach to remuneration for each employee complies with current labor legislation and does not constitute discrimination.
Accordingly, the court rejected the plaintiff's claims.
Another example from judicial practice: Ruling of the Irkutsk Regional Court No. 33-5975/12 dated July 24, 2012.
The employee was reinstated by a court decision, and the employer was forced to continue the employment relationship. Based on the results of the certification, the employee was assigned a lower rating than he had previously, and a lower increase was established to the base part of the salary; the salary itself was not increased. The remaining employees received an increase in base salary. At the same time, the job description was the same for all employees in this position. The plaintiff considered these circumstances to be discrimination and went to court. The court rejected the claim, motivating its decision with the same arguments as in the previous judicial act.
Thus, employees can be given different salaries and different bonuses depending on the business qualities of employees working in the same position.
Although this position of the courts does not correspond to that stated in the letter of the Federal Tariff Service dated April 27, 2011 No. 1111-6-1, it is quite justified. Please note that the letter is not mandatory, it is only the opinion of an official of the regulatory body, an alternative position on this issue.
The approach of employers to justifying the difference in salaries is also interesting: careful work was carried out to assess the business qualities of employees based on developed methods. This approach, although it represents an element of corporate bureaucracy, is at the same time a clear and understandable mechanism that makes it possible to equally ensure an individualized approach to remuneration and protect the company in the event of claims by “offended” employees.
2. Employees are in the same position, but have different responsibilities (job descriptions) and different salaries.
This situation represents a simpler option for justifying the difference in fixed salary(s). Here, the employer does not need to evaluate (certify) employees, since differences in job responsibilities imply different business qualities of the employees performing these duties and, accordingly, different remuneration for the work of each employee. Let's look at a couple of examples of how this happens in practice, and how the employer reflects the claims of dissatisfied employees.
So, in The ruling of the Krasnoyarsk Regional Court in case No. 33-6699 dated July 22, 2013 describes the following case.
Two employees had the same positions - senior engineer for operation and optimization of the mobile network, but their salaries were different. When an employee whose salary was lower learned that his colleague was receiving a higher salary in the same position, this was the basis for filing a lawsuit for discrimination and payment of the difference in wages. The court examined the job descriptions of both employees and came to the conclusion that the higher-paid engineer had a broader range of job duties and higher responsibilities. Based on this, the court considered it legitimate to establish a larger salary for an employee with a wider range of duties and greater responsibility.
A similar situation was considered in Appeal ruling of the judicial panel of the Penza Regional Court dated July 17, 2012 No. 33-1679.
One of the three employees holding the position of legal adviser received a salary less than two of his colleagues, which served as the basis for filing a discrimination claim in court. The court examined the job descriptions of the plaintiff and his colleagues, questioned them as witnesses and came to the conclusion that the duties of the plaintiff’s colleagues were more complex and required specific knowledge in various areas of law and a greater degree of responsibility. Accordingly, the claim was denied.
Thus, from the above examples it follows that in order to establish different salaries for employees in the same position, it is necessary that the range of responsibilities of such employees vary in scope and complexity, which must be confirmed by the job description.
3. Employees in the same position and with the same responsibilities are given the same salary, but different allowances.
Perhaps one of the least complicated ways to establish different salaries for employees is to make the same salaries and introduce differentiating bonuses according to certain criteria. This particular case is described in the Appeal ruling of the judicial panel for civil cases of the Moscow City Court dated May 16, 2012 No. 11-5036/2012.
So, two employees worked in the same position - business development manager. One of the employees had a significantly higher salary than the other, which is why the latter initiated a discrimination lawsuit. At the court hearing, it was established that the more highly paid development manager had 10 years of work experience, but the plaintiff did not. At the same time, the staffing table provided for an increase in salary for length of service, and this is what explained the difference in wages. Based on these arguments, the court rejected the plaintiff's claims.
Let us note that this position is most consistent with that set out in the Letter of the Federal Tariff Service dated April 27, 2011 No. 1111-6-1.
So, we have looked at several typical situations for justifying “unequal wages”. As we can see, the courts are quite loyal to employers in this matter. But it should be remembered that this is due to a clear documentary and factual justification for the difference between the fairly assessed business qualities of employees and/or their range of responsibilities. Those companies that find ways to competently and fairly justify such differences, both internally and in litigation, have a high chance of success in the event of claims by aggrieved employees.
We also note that the situation when salaries are unequal may raise questions among the State Labor Inspectorate, which is closer to the position set out in Letter of the Federal Tariff Service dated April 27, 2011 No. 1111-6-1. Accordingly, there is a risk of prosecution under Article 5.27 of the Code of Administrative Offenses of the Russian Federation if this situation is considered by the state labor inspector to be a violation of labor legislation. This, however, does not prevent the employer from defending his position in court by appealing against such a conclusion of the labor inspectorate.
Also, some experts, if there is a system of grades, assessments, and the like, advise establishing different categories of positions within specific grades, for example: leading legal adviser of the first category, leading legal adviser of the second category, and the like. Accordingly, these are already separate positions, and if an employee’s grade changes, transfers must be processed, which creates an additional burden on the HR department.
It should also be noted that the claims of workers are caused by the fact that they do not have a very good idea of what caused the difference in wages. This is due, among other things, to the opacity of the wage setting system: often employees simply do not understand why a colleague is paid more and why the difference in wages is carefully hidden. This creates a feeling of deception and injustice. In this direction, it is necessary to carry out explanatory work with staff, to explain the principles of forming remuneration for work in the company both to all employees and to a specific person who believes that he is financially undervalued. This will help in many cases eliminate brewing conflicts over unequal wages.
Irina Vishnepolskaya, practicing lawyer
Berezutsky Vladimir Nikolaevich(06.11.2012 at 16:01:08)
Good afternoon, Ilya. Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not lower than the established minimum wage. This provision has found its further implementation in local legislation. Thus, Article 2 of the Labor Code of the Russian Federation enshrines the principle according to which each employee is guaranteed the right to timely and full payment of fair wages, ensuring a decent human existence for himself and his family, and not lower than the minimum wage established by federal law labor. This principle is manifested in establishing the employer’s obligation to provide employees with equal pay for work of equal value (Article 22 of the Labor Code of the Russian Federation). Therefore, every employer is obliged to establish a remuneration system, since the establishment of salaries cannot be arbitrary (Definition of the Russian Federation of November 11, 1997//Bulletin of the Supreme Court of the Russian Federation. 1998. No. 3). The remuneration system adopted by the enterprise must take into account the requirements of laws, other regulations, agreements, local regulations and employment contracts (Articles 129, 135 of the Labor Code of the Russian Federation). The staffing table is an internal, local regulatory act that determines official salaries in relation to each staff unit (position), indicating its rank, class, category, and qualifications. This can be very clearly seen in the example of the unified form T-3 “Staffing table”, approved by Resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004 (this form is advisory; an enterprise can develop its own form of staffing table). The number of staff positions is determined at the discretion of the employer, while the employer has the right to assign several staff positions with the same name (for example, legal adviser - 3 units, senior legal adviser - 2 units, etc.). The requirements for occupying a position, the range of duties, powers and responsibilities of an employee are determined, as a rule, in the job description (an employment contract most often indicates only the name of the position or a general indication of the employee’s job function without specifying functional responsibilities). The job description must correspond to the name of the position in the employment contract and the name of the position in the local documents of the enterprise (including in the staffing table). Consequently, remuneration at an enterprise is regulated by a number of local regulations, which represent a coordinated and interconnected system that presupposes a uniform approach to determining the amount of wages for certain categories of workers. Therefore, in the staffing table, several salaries (tariffs) cannot be established for one position, since there are no systematically established criteria for the employer’s preference in remuneration for each employee for this position. However, in practice, indeed. A situation may arise when the staffing table approves several staff units for the same position with different salaries. This situation can be viewed in two ways. First, workers in similar positions may receive unequal pay for equal work based on the employer's subjective preferences. This can be regarded as discrimination against workers in wages. Numerous cases in this category indicate that the courts clearly rule in favor of employees, collecting the difference in salaries from the employer. Secondly, with different salaries for one position, the staffing table may have several job descriptions with different scope of responsibilities and level of qualification requirements. If we approach this situation formally and legally, then workers perform different amounts of work, and therefore it is impossible to establish the presence of discrimination in wages, since wages are remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions work performed... (Article 129 of the Labor Code of the Russian Federation). However, from the point of view of personnel records management, such an approach to determining the remuneration system is unlawful, since, in accordance with Art. 57 of the Labor Code of the Russian Federation, the name of the position (specialty, profession) indicating qualifications in accordance with the staffing table and the employee’s official salary are essential terms of the employment contract. Such a personnel policy at an enterprise can cause problems with employees regarding wages, and can also cause numerous claims from the labor inspectorate. Based on the above. I think you should change the approach established in your organization, according to which it is allowed to set different salaries for specialists of the same position.