Punishment for forced labor. Forced Labor

Forced labor is prohibited.

Forced labor - performing work under the threat of any punishment (force), including:

in order to maintain labor discipline;

as a measure of responsibility for participating in a strike;

as a means of mobilizing and using labor for the needs economic development;

as a punishment for having or expressing political views or ideological beliefs contrary to established political, social or economic system;

as a measure of discrimination based on race, social, national or religious affiliation.

Forced labor also includes work that an employee is forced to perform under the threat of any punishment (violent influence), while in accordance with this Code or other federal laws he has the right to refuse to perform it, including in connection with :

violation of established payment terms wages or payment not in full;

the emergence of an immediate threat to the life and health of an employee due to violation of labor protection requirements, in particular the failure to provide him with collective or personal protection in accordance with established standards.

For the purposes of this Code, forced labor does not include:

work, the performance of which is stipulated by the legislation on conscription and military service or an alternative civil service replacing it;

work, the performance of which is conditioned by the introduction of a state of emergency or martial law in the manner established by federal constitutional laws;

work performed under emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases threatening life or normal life conditions the entire population or part thereof;

work performed as a result of a court sentence that has entered into legal force under the supervision of government bodies responsible for compliance with the law in the execution of court sentences.

COMMENT 1.

The ILO Declaration on Fundamental Principles and Rights at Work (1998), among the most important principles relating to fundamental rights, names the abolition of all forms of forced or compulsory labor (clause 2b of the Declaration).

This is the second case (along with Article 3 of the Labor Code of the Russian Federation) when a special article was included in the Code, specifying the principle already enshrined in Art. 2 of the Labor Code of the Russian Federation among the basic principles legal regulation labor relations and other directly related relations, which indicates the importance that the state attaches to the principle of prohibition forced labor. 2.

Two ILO conventions are devoted to this problem - No. 29 “On Forced or Compulsory Labor” (1930) and No. 105 “On the Abolition of Forced Labor” (1957), ratified by Russia (as the legal successor of the USSR).

The provision prohibiting forced labor is enshrined in the Constitution of the Russian Federation (Article 37). 3. The definitions of forced labor used in Russian legislation are largely based on similar ones contained in international legal acts.

Thus, forced labor means performing work under the threat of some kind of punishment (force). ILO Convention No. 29 clarifies that this term refers not only to work, but also to service required of a person under threat of any penalty, for the performance of which that person has not offered his services voluntarily.

In accordance with Russian labor legislation, to qualify labor as forced, only the threat of punishment is sufficient. 4.

Part 2 of the commented article provides a specific list of cases when labor should be considered forced. These cases include labor:

a) in order to maintain labor discipline;

b) as a measure of responsibility for participation in a strike;

c) as a means of mobilizing and using labor for the needs of economic development;

d) as a punishment for having or expressing political views or ideological beliefs contrary to the established political, social or economic system;

e) as a measure of discrimination based on race, social, national or religious affiliation. 5.

Part 3 Art. 4 of the Labor Code of the Russian Federation expands this list (in comparison with the positions enshrined in international legal acts).

In accordance with it, forced labor also includes work that an employee is forced to perform under the threat of any punishment, although in accordance with the Labor Code of the Russian Federation or other federal laws he has the right to refuse to perform it, including in connection with:

a) in violation of the established deadlines for payment of wages or payment of wages not in full;

b) the emergence of an immediate threat to the life and health of an employee due to violation of labor protection requirements, in particular the failure to provide him with means of collective or individual protection in accordance with established standards. 6.

The situation with non-payment of wages is apparently a purely Russian situation. International legal regulation does not even imply the possibility of “free” labor within the framework of labor relations based on law and contract.

In cases of untimely payment of wages, the employee has the right to suspension of work (except for the cases listed in Part 2 of Article 142 of the Labor Code of the Russian Federation), provided that the delay in payment of wages was more than 15 days and the employee notified the employer in writing about the suspension of work . Based on this norm, suspension of work is allowed not only in cases where a delay in payment of wages for a period of more than 15 days was due to the fault of the employer, but also in the absence of such. In this case, the employee has the right not to go to work until the delayed amount is paid to him (see paragraph 57 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation"). 7.

Part 4 of the commented article contains a list of types of work that are not included in the concept of forced labor,

and, accordingly, the employee (or citizen) does not have the right to refuse to fulfill them.

ST 4 Labor Code of the Russian Federation.

Forced labor is prohibited.

Forced labor- performing work under the threat of any punishment (violent influence), including:

in order to maintain labor discipline;
as a measure of responsibility for participating in a strike;
as a means of mobilizing and utilizing labor for economic development needs;
as a penalty for holding or expressing political views or ideological beliefs contrary to the established political, social or economic system;
as a measure of discrimination based on race, social, national or religious affiliation.

violation of established deadlines for payment of wages or payment not in full;
the emergence of an immediate threat to the life and health of an employee due to violation of labor protection requirements, in particular the failure to provide him with means of collective or individual protection in accordance with established standards.

For the purposes of this Code, forced labor does not include:

work, the performance of which is stipulated by the legislation on conscription and military service or an alternative civil service replacing it;
work, the performance of which is conditioned by the introduction of a state of emergency or martial law in the manner established by federal constitutional laws;
work performed under emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases that threaten the life or normal living conditions of the entire population or part of it;
work performed as a result of a court sentence that has entered into legal force under the supervision of government bodies responsible for compliance with the law in the execution of court sentences.

Commentary to Art. 4 of the Labor Code of the Russian Federation

1. The prohibition of forced labor, as well as the prohibition of discrimination in the world of work, is one of the four fundamental principles of international labor law set out in the ILO Declaration on Fundamental Principles and Rights at Work (adopted in Geneva on June 18, 1998). ) (see Article 10 of the Labor Code of the Russian Federation and commentary thereto). The isolation of legislative regulation of this principle in a separate article of the Labor Code of the Russian Federation should also be regarded as an indicator of its special significance.

In addition to international labor law, the prohibition of forced labor is contained in the norms of international humanitarian law, the sources of which are acts of general and regional validity. The first is the International Covenant on Civil and political rights 1966, to the second - the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ratified by Federal Law of March 30, 1998 N 54-FZ) and the Commonwealth Convention Independent States on human rights and fundamental freedoms 1995 (ratified by Russia on November 4, 1995). But the most detailed legal regulation of the prohibition of forced labor is still contained in the international labor law, which devoted two ILO Conventions to this problem: No. 29 “On forced or compulsory labor” (concluded in Geneva on June 28, 1930) and No. 105 “On the Abolition of Forced Labor” (concluded in Geneva on June 25, 1957 ). Both Conventions have been ratified by our country. In addition, the prohibition of forced labor is contained in Part 2 of Article 37 of the Constitution of the Russian Federation and Art. 1 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”.

2. Given in Part 2 of Art. 4 of the Labor Code of the Russian Federation, the definition of forced labor is based on the wording contained in paragraph 1 of Art. 2 of the ILO Forced or Compulsory Labor Convention, which states that the term “forced or compulsory labor” means all work or service exacted from a person under threat of any penalty, for which that person has not offered himself voluntarily. services. In contrast to what is included in Part 2 of Art. 4 of the Labor Code of the Russian Federation, this definition speaks not only about forced, but also about compulsory labor. However, this Convention does not give independent meaning to the term “compulsory labor” in comparison with the term “forced labor”, due to which they are indistinguishable. From this point of view, Russian legislation quite legitimately operates with only one term - “forced labor”. At the same time, the characteristics of forced or compulsory labor given by the said Convention and Part 2 of Art. 4 Labor Code of the Russian Federation, have certain differences. This Convention, in addition to performing work under the threat of any punishment (violent influence), also classifies as signs of forced or compulsory labor the absence of a voluntary offer by an employee of his services to perform this work. This circumstance should not be regarded as a violation of the provisions of this Convention and the norms of the Labor Code of the Russian Federation. It’s just that Russian law has taken a more stringent approach to qualifying specific labor as forced labor, so if, according to the norms of international labor law, this requires the presence of two signs, then according to the norms of the Labor Code of the Russian Federation, one is sufficient - the threat of applying any punishment (violent influence).

In addition to the general definition of forced labor, Part 2 of Art. 4 of the Labor Code of the Russian Federation also gives it specific examples, almost textually coinciding with the list of forms of forced or compulsory labor contained in Art. 1 of the ILO Convention on the Abolition of Forced Labour. In this aspect, the norms of the Labor Code of the Russian Federation on the prohibition of forced labor are fully consistent with the norms of international labor law.

3. Part 3 of the commented article has no analogues in international labor law and, in fact, expands the list of types of forced labor contained in Art. 1 of the ILO Convention on the Abolition of Forced Labour. In this case, the domestic legislator took a non-trivial approach to the formulation of these two additional types forced labor. According to Part 3 of Art. 4 of the Labor Code of the Russian Federation, forced labor is a violation of the established deadlines for the payment of wages or its payment not in full. Based on the literal interpretation of this wording, forced labor should include any labor carried out in the absence of payment, not only in full, but also in part. In other words, any delay in payment, partial or complete non-payment of wages must be qualified as forced labor, regardless of the reasons that led to these consequences and the employer’s guilt in their occurrence.

The situation is similar with the second, specified in Part 3 of Art. 4 of the Labor Code of the Russian Federation, a type of forced labor, which always occurs in the event of a threat to the life and health of an employee due to violation of labor protection requirements in any possible way.

Since forced labor is prohibited, the employer has no right to demand its performance, and the employee has the right to refuse it. Essentially, the employee’s right to stop performing the work assigned to him in such conditions is a way of self-defense of the right to receive paid and safe work(see Article 142 of the Labor Code of the Russian Federation and the commentary thereto, as well as Part 2, Clause 57 of the Resolution of the Plenum Supreme Court RF (hereinafter referred to as the RF Supreme Court) dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). The very opportunity to use this method of protecting a violated right arises for the employee from the moment the phenomenon of forced labor appears, i.e. from the first day of failure by the employer to comply with the employment contract responsibilities for proper payment and labor protection (see Articles 142 and 379 of the Labor Code of the Russian Federation and comments to them).

4. Part 4 of the commented article of the Labor Code of the Russian Federation contains a list of types of work that are not recognized as forced labor. In general, it is consistent with a similar list given in Art. 2 of the ILO Convention on Forced or Compulsory Labor. However, the Convention list is formulated more broadly than the list contained in Art. 4 Labor Code of the Russian Federation. In addition to Art. 4 of the Labor Code of the Russian Federation it includes: a) any work or service that is part of the ordinary civil duties of citizens of a completely self-governing country; b) minor work of a communal nature, i.e. work performed for the direct benefit of the collective by members of this collective, which therefore can be considered ordinary civil duties of members of the collective, provided that the population itself or its direct representatives have the right to express their opinion regarding the appropriateness of these works.

Despite the fact that our legislator refused to reproduce the wording of these exceptions in the Labor Code of the Russian Federation, they remain valid in relation to our country. This follows from the fact that Russia has ratified the relevant Convention. It follows that forced labor should not be recognized as those works that are performed for the direct benefit of the collective by members of this collective for the improvement and sanitary and hygienic prevention of buildings and territories occupied by schools, boarding schools, children's and youth health camps, as well as institutions in charge of executing punishments , subject to the provision of representatives of these groups with the right to express their opinion regarding the advisability of carrying out such work.

The labor problem affects not only specific person, but also society as a whole. Forced labor is the most current problem both for national and international law.

Concept of PR

Forced labor is the performance of certain work under the threat of punishment. As such, both mental and physical pressure can be applied, which in any case is violent. Such influence is unacceptable in order to maintain the economic development of the employer (organization) and so on. Violence is not allowed as a measure of responsibility and punishment for organizing and participating in a strike, for expressing political views and ideological convictions.

Forced labor is such if the worker does not have the opportunity to refuse it. The prohibition of forced labor applies to the following cases:

Legislation on PR

Forced labor is prohibited in many countries and is controlled by national legislation. Moreover, numerous normative legal acts are contained in international law, among which the most important are:

International Covenant on Civil and Political Rights;
ILO Convention on the Abolition of Forced Labor;
ILO Forced Labor Convention.

In addition, legal norms prohibiting this type of labor are reflected in the documents general, such as the Universal Declaration of Human Rights.

not related to PR

Forced labor is only those actions that are performed under threat of punishment. However, there are conditions that formally fall under the above definition, but in fact are not such. These conditions include:

Territoriality of PR

Discrimination against forced labor penetrates into all spheres and types of society, regardless of origin, historical background, period of formation, economic structure, and so on. This phenomenon can exist in both developed and poor countries, and is not limited to one area on the planet. This is largely due to the fact that the Forced Labor Convention and the ILO do not contain very specific standards. Most of them are not binding norms.

In this regard, in many countries there are various interpretations the meaning of international acts. Thus, some believe that forced labor is closely related to totalitarian regime, as well as severe exploitation of humans. The second option would introduce new terms such as “modern slavery” or “practices similar to slavery.” These concepts are associated with unsatisfactory and harmful working conditions, and also relate to low level wages.

Features of PR

Forced labor is an area of activity that has distinctive features. The International Convention of 1930 states that forced labor is any work or service that is performed under pain of punishment from another person. In addition, the act talks about necessary condition: if a person had the opportunity not to engage in this activity, he would definitely take advantage of it.

The above international document also names a number of exceptions, for example regarding military service and military work. This also does not include the work of convicted persons, civil duties, work under emergency circumstances or during an emergency, as well as service or work under strict control representatives of government law enforcement agencies.

The ILO Convention states that forced labor is all economic activity, which is aimed at political re-education, and also entails discrimination. This is not allowed as a means of punishing workers for participating in and holding strikes, since this right established not only by international standards, but also by the Labor Code of the Russian Federation.

Is low salary a PR?

Many people mistakenly believe that forced labor means low wages and unsatisfactory working conditions. Here it is important to draw a clear line between violation of rights and unfavorable conditions for successful activities. In the case of low pay, a person always has the right to choose: quit or continue working in a certain place. For reasons beyond his control, for example due to the lack of an alternative, the employee continues to donate the results of his work to one company or another.

Forced labor refers to a gross restriction of one’s freedoms proclaimed by law. This question relates entirely to modern international problems of slavery, serfdom, and debt bondage.

What actions are inextricably linked with PR?

Forced labor is the commission of certain actions that fall under the above qualifications. So to this species illegal activities include the following:

Forced labor at the ILO

Freedom of labor is one of the most important norms of any national legislation. No person, no organization can take away this right. Forced labor is a clear example of a violation of the above principle. That is why this problem is especially carefully considered by the ILO.

Considers 2 necessary elements for recognizing a certain type of activity as forced. Firstly, there is no sign that the work is being done voluntarily. Secondly, the performance of duties is carried out under threat of punishment. More than 75 years of practice have brought clarity to the above elements. In addition, the threat of punishment means not only a punitive sanction, but also the deprivation of certain rights.

Forms of threat of punishment in PR

Forced labor is characterized various forms threats and punishment. The most striking representatives are physical violence associated with imprisonment. In addition, criminals often take advantage of the opportunity negative influence on relatives and close persons of a person who is under the yoke of labor.

The second most common form is the psychological form of threats and influence. As a rule, the most common threats are the need to hand over victims to law enforcement agencies. Thus, there are widespread cases where employers who actually forced their subordinates to work reported their location to the police or migration service. These threats are particularly successful in the case of illegal presence foreign citizen in the state. TO psychological impact also includes the threat of reporting information that a girl is engaged in prostitution in remote areas of a settlement or city.

Features of PR in the financial sector

The third form of threat is financial in nature. As a rule, the victim is subject to economic penalties, such as debts, non-payment of earnings, threats of dismissal, and so on. The latter option applies if the employee refuses to comply. In addition, employers often require the submission of identification documents. If you have been subjected to similar actions, it is worth considering whether you and your colleagues are showing signs of forced labor.

Forced labor is prohibited. No one will argue with this statement.

But do you know what is meant by forced labor there may be work situations that employees face every day?

“Forced labor is not one of the widely discussed social problems in Russia.

However, in professional community influenced by reality and information obtained from different sources, some idea of this phenomenon has already been formed. Although in the expert questionnaire we provided the definition of forced labor from the 1930 ILO Convention, we asked the experts to independently determine the meaning they attach to this concept. Below are definitions of the concept of forced labor given by experts and grouped depending on key element, on which this or that definition is based. A large number of so-called contextual (situational) definitions indicate that this phenomenon is perceived by experts not as a theoretical concept, but as a real situation.

Completed by Elena Dmitrievna Khozhaeva, a 3rd year student at the Faculty of Law of the Northwestern Federal Branch of the Russian Academy of Arts. Scientific supervisor: Natalya Anatolyevna Demeneva, Candidate of Social Sciences, Associate Professor. Forced labor in Russia: problems of methodology

The Russian Federation, like many countries of the world, as the most important principle, defining legal status personality, recognizes that a person, his rights and freedoms are the highest value. Article 2 of the Constitution states that the recognition, observance and protection of human and civil rights and freedoms is the duty of the state. The right to free work is one of the fundamental human rights, from which the ban on forced labor follows.

In accordance with paragraph 2 of Art. 37 of the Constitution of the Russian Federation and Art. 4 of the Labor Code of the Russian Federation, forced labor is prohibited.

The prohibition of forced labor is based primarily on international legal norms. This is the International Covenant on Civil and Political Rights (1966), which entered into force on March 23, 1976. Its art. 8 states that no one should be subjected to forced or compulsory labor. The International Labor Organization (ILO) pays great attention to forced labor.

Article 4 of the Labor Code of the Russian Federation, part 2, adopted the provisions of Article 1 of ILO Convention No. 105 “On the Abolition of Forced Labor” of June 25, 1957, ratified by Russia on July 2, 1988, lists five cases when labor is recognized as forced. Thus, forced labor is performing work under the threat of applying any punishment (violent influence), including: in order to maintain labor discipline; as a measure of responsibility for participating in a strike; as a means of mobilizing and utilizing labor for economic development needs; as a penalty for holding or expressing political views or ideological beliefs contrary to the established political, social or economic system; as a measure of discrimination based on race, social, national or religious affiliation.

Current labor legislation expanded the concept of forced labor in comparison with international law. For the first time, violation of established deadlines for payment of wages or payment of wages not in full was enshrined in the basic labor law.

Employer's requirement for fulfillment labor responsibilities from the employee, if the employee is not provided with collective or individual protective equipment or the work threatens the life or health of the employee. This fundamental provision is implemented in a number of articles of the Code. Yes, Art. 142 allows an employee to suspend work if the employer delays payment of wages for more than 15 days; Art. 220 not only gives the employee the right to refuse to perform work that threatens his life and health, but also obliges the employer to pay for all downtime until such danger is eliminated.

Prohibiting forced labor, Art. 4 of the Labor Code of the Russian Federation lists types of work that are not considered forced labor.

This listing begins with work performed as part of military service and alternative civilian service. According to the Law on Military Duty, citizens undergoing military service, are military personnel. When conscripted for military service, a person may be sent to alternative civilian service. Work performed during the performance of military duty or alternative civilian service cannot be classified as forced labor. Work performed in emergency circumstances (accidents, fires, floods, earthquakes and other emergency circumstances that threaten the life or livelihood of the population) is not considered forced labor. Law on state of emergency provides, in exceptional cases related to the need to carry out and ensure emergency rescue and other urgent work, the mobilization of able-bodied citizens and the involvement of their vehicles to carry out the specified work, subject to mandatory compliance with labor safety rules. All work performed in execution of a sentence under a court sentence that has entered into legal force is not considered forced labor.

Forced labor can be both direct and indirect. A study of ILO Recommendation No. 35 “On indirect coercion of labor” of June 10, 1930 leads to this conclusion. The International Labor Organization recommends that states avoid the use of indirect means that artificially increase economic pressure on the population in order to force them to seek paid work.

Nowadays we often come across such advertisements: “Work abroad. Full board. High salary” In general, very attractive. But is this really the case? See reverse side medals of similar job offers in Lately NGOs are actively offering us proposals.

According to statistics Rehabilitation center The International Organization for Migration, about half of the cases in our country in 2009 involved illegal labor exploitation of people. Or in other words, slave labor.

Previously, human trafficking was associated largely with the sexual exploitation of victims. And now the figures have leveled off by almost half.

It is mainly migrants who end up in forced labor. Only in St. Petersburg during the summer months, employees of the Information and Consultation Center public organization The Red Cross recorded two cases illegal trade people. Citizens of Uzbekistan had their documents taken away, detained on the territory, subjected to “long” working hours and not paid wages.

But the so-called traffickers (human traffickers) are also trying to recruit Russians. The risk group is mainly women and children. Despite the fact that slavery as a social institution was abolished more than two hundred years ago, the practice of modern reality has revived it as a criminal way of extracting excess profits.
Kidnapping, trafficking and use of slave labor in last decades became widespread in Russia. If before 1996 kidnapping was not reflected at all in the official statistics of the Ministry of Internal Affairs of the Russian Federation, then by the end of the last century a significant annual increase in these crimes became a stable trend. Of course, not all reported cases of kidnapping receive exactly this assessment in court verdicts.
Kidnapping is closely related to acts prohibited by international law, such as human trafficking and the use of slave labor. Before the adoption of the Federal Law of December 8, 2003, the Russian Federation did not establish criminal liability for these acts at all. The mentioned law added Articles 127.1 (“Trafficking in Persons”) and 127.2 (“Use of Slave Labor”) to the Criminal Code of the Russian Federation. Unfortunately, the effectiveness of applying these standards is practically zero.

After the intensification of the fight against labor slavery in Russia, more than 800 people turned to the Red Cross for help. They called on hotline, both Russian citizens and foreigners, which made it possible to understand that the problem of labor slavery is acute regardless of citizenship. Thanks to this program, it became clear that a third of all migrant workers working in Russia have ever encountered problems with labor slavery.

Zobnina I.V. Constitution of the Russian Federation and the right to work: some legal aspects, 2000, p. 161

Fedin V.V. Prohibition of forced labor. “Social and pension law” No. 1/2005 p. thirty

Fedin V.V. Prohibition of forced labor. “Social and pension law” No. 1/2005 p. 31