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 that threaten life or normal life conditions 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.
COMMENT 1.
The ILO Declaration on Fundamental Principles and Rights at Work (1998) included essential principles concerning fundamental rights, calls for 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 of 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 prohibition of forced labor is enshrined in Constitution of the Russian Federation(v. 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 of the 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.
The Constitution of the Russian Federation, which has the highest legal force, establishes the principles and basic provisions of labor legislation. These include:
Freedom of choice of activity and scope of labor,
The right to control one's ability to work.
The principle of freedom of labor, proclaimed in Part 1 of Art. 37 of the Constitution of the Russian Federation, fully complies with the provisions of Art. 23 of the Universal Declaration of Human Rights and is reflected in the current federal, regional and local legislation. Freedom of labor means that only the citizens themselves have the exclusive right to dispose of their abilities for productive and creative work.
An employee can exercise this right by concluding an employment contract, while he acquires the right to payment for labor in accordance with its quantity and quality and not lower than the minimum amount established by federal law. All Russian citizens have an equal right of access to any positions in government bodies in accordance with their profession and without any discrimination.
Implement the principle enshrined in Art. 37 of the Constitution of the Russian Federation, an employee may, on the basis of an employment contract, safe conditions, while the responsibility to ensure these conditions lies with the employer.
Constitutional norms relating to the implementation of the principle of freedom of labor on the basis of an employment contract are specified in legislative and other regulations. Russian labor legislation consists of:
international legal acts ratified by the Russian Federation (Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights; Declaration of the International Labor Organization (ILO) 1998 “On Fundamental Principles and Rights at Work”, etc.), Conventions ILO;
the currently valid Labor Code of the Russian Federation (as amended on February 28, 2008);
other acts labor legislation Russian Federation and its subjects.
An employment contract is a common way to implement the principle of freedom of labor, when each citizen independently manages his or her ability to work, choosing to conduct entrepreneurial activity himself or join contractual relationship with business entities. At the same time, by concluding an employment contract, citizens realize not only their principle of freedom of labor in accordance with Art. 37 of the Constitution of the Russian Federation, but also the right to choose a specialty, profession, occupation, as well as place of work.
When exercising the right to freedom of labor, the employee has the right to terminate the employment contract according to own initiative at any time, notifying the employer in writing two weeks in advance (Article 80 of the Labor Code of the Russian Federation).
The opportunity to work freely is guaranteed prohibition forcibly th T Ore. No one should be subjected to forced labor (Article 8 of the International Covenant on Civil and Political Rights), which refers to
any work or service required of any person under threat of any penalty, and for which that person has not offered his services voluntarily 21.
The use of forced labor is prohibited by Article 4 of the Labor Code of the Russian Federation, which defines forced labor as work that a worker is forced to perform under the threat of any punishment (forceful influence), while in accordance with the Labor Code or other federal laws he has the right to refuse its implementation, including in connection with:
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.
This approach to defining the concept of forced labor was chosen to strengthen guarantees of compliance with the labor rights of workers and ensure the implementation of the right to self-defense (Articles 142.219, 220, 379, 380 of the Labor Code of the Russian Federation).
The employer does not have the right to choose a sanction as a disciplinary sanction that is not provided for by law (Article 192 of the Labor Code of the Russian Federation), which excludes the use of forced labor in order to maintain labor discipline and as a measure of responsibility for participation in a strike.
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, i.e. in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics), and in other cases threatening 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.
Freedom of labor is ensured not only by the prohibition of forced labor, but also by compliance with the constitutional principle of equality (Parts 1 and 2 of Article 19 of the Constitution of the Russian Federation). The Constitutional Court emphasized that “...freedom of labor presupposes providing everyone with opportunities on an equal basis with other citizens.
21 Art. 2 of the ILO Convention No. 29 of 1930 on Forced or Compulsory Labour.
under our conditions and without any discrimination, enter into labor relations, realizing their ability to work." The application of the principle of equality excludes the possibility of presenting different requirements to persons performing labor duties of the same content 22.
Every citizen of the Russian Federation has the right to work, but is not obliged to work under pressure from management. No one should fulfill work obligations against their will. Russian legislation prohibits forced, compulsory labor and stands up for the protection of the country's working population who are subject to forced labor by employers. But still, disputes arise, since the definition of forced labor activity includes situations that people sometimes encounter at work. Let's consider what compulsory labor is and what the employer faces for forcing his subordinates to do it.
Concept and characteristics
Work that a person performs under the threat of force is called forced labor. In other words, this work activity, to which the citizen did not consent of his own free will. And such tasks that are forced to be performed against a person’s will are prohibited by the Constitution and Labor Code RF.
The legislator identifies 2 criteria for forced labor.
- Lack of voluntary offer of services by the employee.
- Presence of punishment: deprivation of rights and benefits, physical force for refusal to complete a task.
An example of forced labor is being forced to overtime work. Often this process is accompanied by the confiscation of identification documents from employees. In accordance with the Labor Code of the Russian Federation, there are certain types of compulsory labor, the list of which includes such work as:
- a measure of retribution for participation in a strike;
- a means of engaging and exploiting labor for economic development;
- a way to maintain labor discipline;
- a measure of national or racial restriction of human rights;
- retribution for ideological or political beliefs.
According to No. 90-FZ of June 30, 2006, specific categories with forms of forced labor are identified. This could be a delay in wages or part of it, or forced performance of life-threatening work without observing safety regulations. But the list of illegal interactions between the parties does not end there, since each case of forced labor is individual. As an example, carrying out work in violation of the terms of the contract and without noting the activity in work book employee.
Forcing military personnel to fulfill obligations outside the scope of military service; kidnapping for slave labor; sexual slavery; attracting prisoners to work unusual for activities in places of serving their sentences; forced to work outside the scope job description under the threat of harm to health or life - all these are forms of compulsory labor. Example: a situation where the director does not sign the employee’s resignation letter. So he forces a person to work under the threat of dismissal under the article. And thus the leader breaks the law.
Forced labor can be forced not only through violence or restriction of freedom, but also through the use of indirect means. These include monetary fines, threat of dismissal, confiscation of passport, transfer to a job with worse conditions, etc.
Compulsory labor can be distinguished from voluntary activity by such criteria as dependence on the employer, debt bondage, psychological or physical violence, restriction of human freedom, lack of a contract and social guarantees, forced labor, and unlawful restrictions on payment. There are also cases when salaries are paid not in money, but in kind - for example, in food.
What jobs are not considered forced?
The prohibition of compulsory labor is regulated by Art. 4 of the Labor Code of the Russian Federation and refers to constitutional provisions. This means that every person has the right to choose his occupation and is not obliged to perform any work under threat of punishment. An employee of any organization can resign of his own free will whenever he deems it necessary. At the same time, the manager does not have the right to detain him for more than 14 calendar days.
Labor legislation also provides for circumstances that limit the rights of workers and at the same time are not regarded as a restriction. Such circumstances are allowed, as a rule, to protect citizens. This may be a professional selection or medical examination.
According to Art. 87 of the Constitution of the Russian Federation, work that is performed by order of the President under martial law is not considered forced labor. In this case, involving the population in the work is necessary for the defense of the country when the enemy shows aggression and threatens hostile actions against Russia.
There are cases when circumstances force employers to force subordinates to perform work that may be considered mandatory, but is not.
TO forced labor does not include work performed:
- during natural disasters - for example, floods or other emergency situations;
- in connection with military obligations and military service;
- by a court verdict as a punishment served under the supervision of government agencies.
Tasks that are approved by the court include correctional work and the performance of mandatory labor functions by prisoners. The system of compulsory labor in places where criminals serve their sentences is absolutely legal and applies to all convicts - regardless of their state of health, age and other characteristics. Involving prisoners in work is required for the improvement of a correctional institution, which does not equate to illegal activity. In essence, this is socially useful work that has a positive effect on the correction of convicts.
FORCED LABOR FORCED LABOR - any work or service exacted under threat of any penalty from a person who did not offer his services voluntarily (ILO Convention No. 29 on Forced or Compulsory Labor, 1930). According to paragraph 3 of Art. 8 of the International Covenant on Civil and political rights 1966 no one should be forced to P.t. (compulsory labor). Moreover, in accordance with the said Convention to P.t. does not include: a) hard labor performed as punishment by a court sentence, as well as any work or service that, as a rule, must be performed by a person imprisoned by a court sentence or a person conditionally released from such conclusions; b) any service of a military nature, and in those countries where refusal of military service for political or religious-ethnic reasons is recognized, any service provided by law for persons refusing military service for such reasons; c) any service required in cases of emergency or disaster that threaten the life or well-being of citizens; d) any work or service that is part of ordinary civil duties. P.t. Clause 2 of Art. is also prohibited. 37 of the Constitution of the Russian Federation.
Big legal dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev. 2003 .
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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 participation in a strike;
as a means of mobilizing and using labor for the needs of economic development;
as a measure of punishment for the presence or expression of 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.
Forced labor includes:
violation of established deadlines for payment of wages or payment not in full;
the employer’s requirement that the employee perform labor duties if the employee is not provided with collective or individual protective equipment or the work threatens the life or health of the employee.
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 performed under emergency circumstances, that is, in cases of declaration of a state of emergency or martial law, disaster or threat of disaster (fires, floods, famine, earthquakes, severe epidemics or epizootics), as well as in other cases threatening 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 on Article 4
The prohibition of forced labor is a constitutional provision. In Art. 37 of the Constitution of the Russian Federation states that forced labor is prohibited. This means that no one can be forced to work under threat of punishment. Everyone has the right to choose any type of activity and profession and the right not to engage in labor activity at all.
The constitutional prohibition of forced labor is implemented in various laws and other regulatory legal acts - federal and constituent entities of the Russian Federation.
Article 1 of the Employment Law provides that the lack of employment of citizens cannot serve as a basis for bringing them to administrative or other liability; The article on liability for evasion of socially useful work was excluded from the Criminal Code (in the legislation such evasion was called parasitism).
The prohibition of forced labor is contained in a separate article, and not in the article “Basic labor rights and obligations of workers,” as provided for in the Labor Code. This underlines its fundamental role in regulating labor relations. The prohibition of forced labor provided for in the commented article is in accordance with international legal acts - the International Covenant on Civil and Political Rights of 1966 (USSR Air Force. 1976. N 17. Art. 291), ILO Conventions N 29 “On Forced or Compulsory Labor” 1930 (USSR Air Force. 1956. N 13. Art. 279) and N 105 “On the abolition of forced labor” 1957 (SZ RF. 1998. N 12. Art. 1348).
Unlike the previous Labor Code, the Labor Code not only prohibits forced labor, but also defines its concept, which is identical to the corresponding wording of ILO Convention No. 29 “On Forced or Compulsory Labor”.
This Code has expanded the concept of forced labor in comparison with international legal norms. For the first time, the basic labor law defines that forced labor includes such violations of the employer’s obligation to pay wages, such as untimely payment or incomplete payment. Working without pay is forced labor, prohibited by ILO Convention No. 95 of 06/08/49, Part 2 of Art. 37 of the Constitution of the Russian Federation. This conclusion was reached by the RF Supreme Court, which overturned the decision of the Supreme Court of the Republic of Sakha (Yakutia) to recognize the illegal strike of workers of the Yakutskgorteploset PPTS, announced in connection with a long delay in the payment of wages. An employee cannot be forced to perform job responsibilities without payment of wages (BVS RF. 1998. N 10).
A person cannot be required to perform work that poses a threat to his life or health. The commented article also refers to such a requirement as forced labor.
Prohibiting forced labor, Art. 4 lists the 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. These include correctional, compulsory work, as well as work performed when sentenced to imprisonment. Article 103 of the Penal Code provides that everyone sentenced to imprisonment is obliged to work in places and jobs determined by the administration of correctional institutions. In turn, the administration is obliged to involve convicts in public useful work taking into account their gender, age, ability to work, health status and, if possible, specialty.
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