Agreement on collective liability between the two. What it is

Sometimes it is difficult to clearly separate the areas of responsibility of warehouse or store employees. In this case, an agreement on collective material collective responsibility will help to ensure the safety of the organization's property: you will find a sample in the article.

From the article you will learn:

Agreement on collective liability

collective agreement liability 2017, it makes sense to sign with employees of departments in which it is difficult to share the responsibility of each employee for the entrusted property. This problem is typical for warehouses, shops, delivery of goods and similar activities. In order to correctly introduce and formalize collective (team) liability in an organization, it is necessary to take into account a number of features.

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The contract can be concluded only if the work is indicated in a special list. The list of works, during the performance of which full collective liability can be introduced, was approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. In particular, the following works are included in them:

the employee accepts or issues payments;

the employee makes payments by selling goods and services;

the employee serves vending and cash machines;

the employee buys and sells services and goods;

the employee carries out storage, accounting, issuance of material values ​​in warehouses, bases, in storerooms, etc.

Before entering into an agreement collective liability, check the employment contracts of employees. If necessary, write in them the condition that the duties of employees correspond to the List of works, during the performance of which full collective liability can be introduced. Also indicate that the employee is responsible for the lack of property entrusted to him. If such a provision is written in the employment contract, the employee will be required to sign an agreement on collective liability.

Agreement on collective liability: sample

If a team or team is created from employees who already work in the company, they must be notified of the planned changes that will lead to the conclusion of an agreement on collective liability 2017, at least two months in advance (Article 74 of the Labor Code of the Russian Federation). A written warning about the forthcoming conclusion of an agreement on collective liability is issued on the letterhead of the organization. The document must include:

• the date it was compiled;
• position, surname, initials of the employee to whom it is addressed;
• the essence of the changes and an indication of their reasons;
• signatures (with decoding) of the head of the organization and the employee,
• a note on whether or not the employee agreed to conclude an agreement on full collective liability.

Important: If the employer decides to establish the brigade with full collective liability, an order or instruction must be issued about this (clause 1 of Appendix No. 4 to Decree of the Ministry of Labor of Russia No. 85).

When the director signs the order, familiarize it with the signature of each member of the team, and not just his leader. Otherwise, you will not be able to prove that you brought the contents of the order to the attention of all employees of the team. Download sample order:

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Agreement on full collective liability

An agreement on full collective liability 2017 is drawn up on the basis of a standard form of an agreement. It was approved by the Decree of the Ministry of Labor of Russia No. 85. The contract is concluded between the employer and all members of the team or team.

Agreement on full collective liability: sample

Collective liability agreement: sample for a store

As already noted, a collective liability agreement can not be drawn up with any employee. It can be concluded only with those employees who perform work in accordance with the list approved by Decree of the Ministry of Labor of Russia No. 85. Such an agreement can be drawn up with store employees who perform work on trade, vacation, sale of goods, preparing them for sale.

Collective liability agreement: the sample for the 2017 store looks the same as in any other case. It should be drawn up in a standard form.

Agreement on the collective liability of the seller: sample

It is safest to use a standard form when developing a sample agreement on the collective liability of the seller. You can make changes to it if necessary. For example, specify the types of property or obligations that are charged to the seller.

Important: It is risky to exclude any provisions from the standard form. The court may recognize that in this case the employer violated the procedure for bringing employees to liability.

When concluding an agreement on the collective liability of the seller in 2017, as in the general case, the representative of the employees is the head of the team. He signs the contract.

The head of the team (foreman) accepts property, keeps records and submits reports on the movement of property. He also signs reports on the movement and balances of property together with one of the members of the team, who is determined in order of priority.

The agreement on full collective (team) liability is drawn up in two copies, one of which remains with the head of the team.

The law does not impose additional responsibility on the head of the team. He bears collective (brigade) financial responsibility along with the rest of the team members (Chapter 39 of the Labor Code of the Russian Federation).

Agreement on full collective brigade liability

If new employees appear in the team, there is no need to draw up termination and conclusion of new treaty on full collective brigade liability 2017. In this case, it is enough for a beginner to sign an already existing agreement on full collective liability (clause 5 of Appendix No. 4 to Decree of the Ministry of Labor of Russia No. 85). An entry about a new member of the team is made on a sheet where the signatures of the members of the team are. If there is no space, add new leaf like an application. On it you need to indicate the following details of the document: name, date of conclusion and number of the contract.

However, a full collective agreement liability it is necessary to re-conclude if more than 50 percent of the team left the team or the head of the team changed (clause 4 of Appendix No. 4 to Decree of the Ministry of Labor of Russia No. 85)

If employees have established collective (team) liability, it is necessary to carry out mandatory inventories in the following cases:

if the head of the team (foreman) has changed;

if more than 50% of its members left the team (team);

at the request of one or more members of the team (team).

Note! If an employee who was part of the team quits, sometimes employers terminate the collective liability agreement and sign a new one. There is no need to do this. If the employee left, then in the contract opposite his signature it is enough to put down the date of dismissal (clause 5 of Appendix No. 4 to Decree of the Ministry of Labor of Russia No. 85).

Agreement on collective liability-sample 2018 - 2019

An agreement on collective liability - a sample of 2018 - 2019 is signed between the employer and the team, which uses material assets in the course of its work. What is material liability, when it arises, about the types of liability, including collective, as well as how to draw up a sample contract, we will tell in our article.

Material liability

Material liability of employees is one of the types of liability arising from an employee in the performance of job duties, namely: if there is a shortage of property transferred to the employee or its damage.

Cases of liability may be different: either this is a consequence of a violation of local acts of the enterprise or legislation, or causing damage.

Liability of employees may occur in the event of actions or inaction, as a result of which the employer has incurred losses (Article 238 of the Labor Code of the Russian Federation).

Liability arises in the following cases:

• damage to property has been caused;
• the employer has suffered losses caused as a result of actions (inaction) of the employee;
• determined the amount of damage.

It is possible to recover the cost of losses from employees if an agreement on full liability has been signed between them and the employer (Article 242 of the Labor Code of the Russian Federation). In the absence of such an agreement, the amount of liability will be limited to monthly salary(Article 241 of the Labor Code of the Russian Federation).

The material liability of employees is divided into several types:

1. Depending on the subject:
   • individual, i.e. for a specific employee;
   • collective, that is, imposed on all members of a department or team (Article 245 of the Labor Code of the Russian Federation).
2. Depending on the amount of compensation:
   • full, i.e., the damage is compensated in full, regardless of the income of the employee (Articles 242, 243 of the Labor Code of the Russian Federation);
   • limited - in terms of monthly income (Article 241 of the Labor Code of the Russian Federation).

Collective liability of employees

Collective liability may arise if the parties have signed an appropriate agreement (appellate ruling of the Krasnoyarsk Regional Court dated February 25, 2015 in case No. 33-1656).

Such an agreement is signed with employees who, in the course of their activities, receive, transfer, service or simply use the material assets of the organization (Article 245 of the Labor Code of the Russian Federation). The list of positions filled by employees with whom it is mandatory to conclude an agreement is indicated in the Decree of the Ministry of Labor of the Russian Federation of December 31, 2002 No. 85.

By signing such an agreement, the administration acquires the right to claim damages from the entire department (team). A claim can also be made if it is not possible to establish a specific culprit, and the fact of a shortage is confirmed.

If the employee who is brought to collective responsibility does not want to bear it, he will have to prove that he did not commit any guilty acts (part 3 of article 245 of the Labor Code of the Russian Federation).

Employees can compensate the amount of damage caused voluntarily. If no agreement is reached between the parties, the matter will be considered in judicial order, where the size and guilt of each member of the team will already be established (part 4 of article 245 of the Labor Code of the Russian Federation).

• degree of guilt of each;
• the salary of guilty employees;
• time of work in the brigade from the moment of inventory to the detection of damage.

Sample agreement on collective liability

The agreement on collective liability should include the following information:

1. Name, date and place of its conclusion.
2. Data of all employees and the employer.
3. The subject of the contract (an indication of what values ​​are entrusted to employees and for which they will be responsible).
4. A method for determining the amount of lost property (for example, conducting an examination, etc.).
5. When liability arises (for example, when management pays amounts to third parties due to the guilty actions of the employee, etc.).
6. Signatures and details of the parties.

Appendix 4 to Decree No. 85 contains a standard form of an agreement on collective liability.

If new employees are employed in the team, there is no need to conclude a new contract. However, it can be changed or renegotiated in the event that the composition of the team changes by more than 50% or the foreman changes (see clause 4 of section II of the standard form of the contract).

If the employee refuses to sign such an agreement, he may be dismissed. Refusal to sign the contract can be regarded as a violation labor discipline, and accordingly, it is possible to apply all measures of responsibility for this (paragraph 36 of the decision of the plenum of the Supreme Court of the Russian Federation “On the application by the courts Russian Federation Labor Code of the Russian Federation” dated March 17, 2004 No. 2).

Disclaimer

Exemption from liability is possible for the reasons specified in Art. 239 of the Labor Code of the Russian Federation:

1. If property damage was caused by force majeure or force majeure such as flood, earthquake or other natural disaster.
2. If the damage occurred in the event of a normal business risk.
3. If the property was used for self-defense or in case of other emergency.
4. If the administration has not created the proper conditions for storing property, for example, there is no lock on the fuel storage tank (determination of the Primorsky Regional Court dated August 11, 2015 in case No. 33-6821 / 2015).

How to claim damages

The management can independently bring the employee to liability if the amount of damage is not more than his monthly earnings (Article 248 of the Labor Code of the Russian Federation). Such an order must be issued no later than 1 month from the date of clarification of the final cost of the amount of damage (the appeal ruling of the Rostov regional court dated February 1, 2016 in case No. 33-1546/2016).

Otherwise, if the employee disagrees with the amount of the amount paid, recovery is possible only through the court.

With the consent of the employer, it is allowed to transfer to him equivalent property in exchange for the lost one or repair the damaged one (Article 248 of the Labor Code of the Russian Federation).

If the parties agree on the amount of the amount to be reimbursed, payments are allowed by drawing up a specific agreement indicating the terms and schedule of payment (part 4 of article 248 of the Labor Code of the Russian Federation).

The conclusion of an agreement on collective liability is considered a way to minimize the employer's risks that arise when employees use the property entrusted to them. A collective agreement on material liability allows you to hold an entire team, team or department accountable. In this case, it is not necessary to identify the specific culprit of what happened.

However, it is necessary to have evidence of loss or shortage of property. If the amount of damage does not exceed the amount of the monthly salary, it is possible to recover damage from employees on the basis of the employer's order. In other cases, the amount of damage can be recovered only in court.

The collective liability agreement allows you to protect the interests of the employer. But it can be concluded only with those employees who perform work included in the "List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) liability for the lack of entrusted property", approved Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

For example, such an agreement can be concluded with a team of warehouse workers, since they perform the work provided for by the specified List: acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets.

The standard form of such an agreement is provided for by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

Sample agreement on collective liability 2019, standard form

Order of the USSR Ministry of Trade of August 19, 1982 No. 169 approved "Instructions on the procedure for the application in state trade of legislation regulating the liability of workers and employees for damage caused to an enterprise, institution, organization." According to clause 3.7 of the Instructions, an agreement on full collective brigade liability cannot be concluded with the following persons:

• with employees of a small retail network (delivery and peddling trade, trade in tents, kiosks, etc., including those located separately on the trading floor), as well as other persons with whom an individual agreement on full liability has been concluded;
• employed on a part-time or part-time working week, if they, together with other employees, do not dispose of commodity values ​​(these persons may be sent to independent work areas with full individual responsibility);
• workers of auxiliary professions (ironers, cutters, etc.);
• junior service personnel, loaders, auxiliary (transport) workers, watchmen;
• persons under the age of 18;
• trainees educational institutions, students studying directly at trade enterprises;
• graduates of higher and secondary special educational institutions and institutions of vocational education, as well as persons who have been trained at the workplace, during the first year of work, who do not have experience in working with material values. These employees are prohibited from entrusting independent work for servicing material assets outside the enterprise (delivery and peddling trade, trade in tents, stalls, etc.).

The instructions continue to this day, but the order in which they are applied has not been determined. Concerning this document can be used as a recommendation, since the obligatory nature of its norms is not established either by or by other Federal laws.

However, in this normative act There are important clarifications that are not reflected in current legislation. So, for example, according to clause 2.6 of the Instructions, group responsibility for valuables located on the trading floor (in production) and in the utility room can be established if:

• the utility room is used by only one group, all its members have free access to material assets located both in the trading floor and in the utility room, and participate in all trade, warehouse and production operations;
• Everybody commodity transactions production, auxiliary warehouse, commodity-money transactions trading floor constitute a single process of group work and are controlled by all its members.

The employer can use these provisions when organizing the safety of property entrusted to the team.

Sample collective liability agreement for a store

How to conclude an agreement on collective liability

The decision of the employer to establish full collective (team) liability is formalized by order or instruction. Members of the team must be familiarized with the document under the signature.

Because the unified form there is no order, the employer has the right to develop it independently. The order should contain the following information:

• on the formation of the group;
• on the appointment of the head of the team;
• on the conclusion of an agreement on full collective (brigade) liability.

Here is a sample of filling out an order on the establishment of full collective liability.

The order must be attached to the concluded agreement on full collective (team) liability (paragraph 2, clause 1 of Appendix No. 4 of the Decree of the Ministry of Labor of Russia of December 31, 2002 No. 85).

The procedure for recovering damages under a collective liability agreement

In case of detection of damage subject to compensation by the group, the employer is obliged:

1. Document the amount of losses.
2. Ask all employees of the team for explanations on the fact of the damage.
3. Establish a causal relationship between damage and performance/non-performance official duties workers.

Losses to be reimbursed by the team are distributed among the members of the team in proportion to the monthly tariff rate (official salary) and the time actually worked for the period from the last inventory to the day the damage was discovered (clause 7.3 of the Guidelines). This way of calculating damages arbitrage practice recognizes as logical and lawful (paragraph 14 of the Resolution of the Plenum Supreme Court Russian Federation dated November 16, 2006 No. 52, Decision of the Moscow City Court dated June 29, 2010 in case No. 33-16601).

It should be borne in mind that, according to part 4 Art. 245 of the Labor Code of the Russian Federation, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. Therefore, the employer must draw up an agreement with the members of the team (team), which will indicate the amount of compensation for each specific member of the team (team).

The very amount of damage payable by a particular employee, in accordance with clause 7.3 of the Instructions, can be determined by the following formula:

P1 \u003d C × Z1 / (Z1 + Z2 + ... + Zn),

• P1 - the amount of compensation for damage by the first member of the brigade;
• C - the amount of losses caused by the brigade;
• З1, З2, З3, ... Зn - the salary of the team members for the inter-inventory period according to salaries, taking into account the hours worked.

When calculating the amount of damages in wages does not include bonuses received by employees, as well as severance pay, compensation and other payments, which, according to the law, are not subject to collection.

Accordingly, after determining the amount of compensation for damage, a written agreement about the amount and procedure for its repayment. The agreement is drawn up by all members of the team and signed by them and the employer.

If losses are recovered in court, the degree of guilt of each member of the team is determined by the court (part 4 Art. 245 of the Labor Code of the Russian Federation).

The current legislation does not provide for the joint and several liability of employees with whom an agreement on collective liability has been concluded, in case of causing harm to the employer.

Exemption from liability of a team member

Exemption from the collective liability of a team member is possible by agreement between the employer and the rest of the team members or in court. In court, in order to be released from liability, the team member must prove the absence of his guilt (part 3 Art. 245 of the Labor Code of the Russian Federation). The employer does not need to prove the guilt of each member of the team (team). He is obliged to determine the amount of damage and the cause of its occurrence ( Art. 247 of the Labor Code of the Russian Federation).

Vladimir Alistarkhov, legal expert

Collective liability involves compensation for damage received by the employer as a result of improper performance of labor duties by employees, at the expense of members of the entire team on the basis of a collective agreement concluded between the employer and employees.

From the point of view of the employer, it can be recognized that an agreement with employees on collective liability is almost the most beneficial for the company in connection with the principle used "one creates - everyone will answer."

To what extent a collective agreement on material liability is beneficial for each of the employees is a rather ambiguous question.

On the one hand, when employees work together and feel the shoulder of their comrades, work should be argued, but on the other hand, certain frictions are inevitable in the team when the question arises of who is to blame and what to do in case of damage to the employer.

Often, employees do not want to get involved in collective responsibility, preferring to refuse to sign a collective agreement or change employers.

In connection with the above, it seems appropriate to analyze the following questions:

• Under what circumstances can collective liability arise?
• The procedure for determining the amount of damage to the employer in case of collective liability?
• Can an employee refuse to sign a collective liability agreement?
• Are there any consequences for the employee in case of refusal to sign the collective liability agreement?

To answer the questions posed, we will use the current legislation of the Russian Federation and the relevant judicial practice.

Circumstances under which collective liability arises.

According to Art. 245 of the Labor Code of the Russian Federation, if it is impossible to distinguish between the responsibility of employees in the joint performance of work, the employer has the right to introduce collective (team) liability for damage.

Collective liability for damage caused is introduced by signing a collective agreement between the employer and employees.

It should be noted that a collective agreement on material liability cannot be concluded with a person who is under eighteen years of age, which follows from the ruling of November 19, 2009 N 18-В09-72 of the Supreme Court of the Russian Federation.

The standard form of an agreement on full collective liability was approved by Decree No. 823 of the Government of the Russian Federation of November 14, 2002 “On the procedure for approving positions and work to be replaced or performed by employees with whom the employer can conclude written agreements on full individual or collective (team) material responsibility, as well as standard forms of agreements on full liability”.

An agreement on collective material liability can be concluded taking into account the List of works, during the performance of which full collective (team) material liability may be introduced for the shortage of property entrusted to employees, which is approved by the Decree of the Ministry of Labor and social development RF dated December 31, 2002 No. 85.

If employees, on the basis of a collective agreement on material liability, agree to compensate the employer for damages, then the amount of damage is established by agreement of the parties. Otherwise, the amount of damage is established in court.
In this case, the court establishes the degree of guilt of each employee, and the employee, in turn, has the right to prove his innocence in court.
According to paragraph 1 of Appendix No. 4 of the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, in addition to the collective agreement on liability, the employer is obliged to issue an appropriate order on the establishment of collective liability.

Arbitrage practice

The Constitutional Court of the Russian Federation, in its ruling dated June 24, 2008 No. 349-O-O, pointed to the legitimacy of concluding a collective agreement on liability if employees jointly perform certain types works related to the storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage.

It also follows from the said Definition that employees who have concluded a collective agreement on liability with the employer must ensure the safety of the property entrusted to them.

Sizing material damage caused to the employer, and the procedure for its repayment or recovery.

The amount of material damage is determined in accordance with Art. 246 of the Labor Code of the Russian Federation. According to this article, if the employer or his property is damaged, then the amount of damage is determined by the actual losses of the employer, taking into account market prices on the day the damage was caused and the value of the property according to accounting data.

According to Ruling No. 18-В09-72 of the Supreme Court of the Russian Federation dated November 19, 2009, the employee is obliged to compensate the employer for real damages, but is not obliged to compensate the employer's lost profits.

Real damage is understood as a decrease in the property of the employer or deterioration of its condition, including this also applies to the property of third parties that is at the disposal of the employer.

To determine the damage caused under the collective agreement on liability, the employer must conduct an inventory, the procedure and terms for which are established by Art. 11 of the Federal Law of December 6, 2011 N 402-FZ "On Accounting".

Based on the results of the inventory, the actual damage caused to the employer and his property is established, which can be repaid by employees in the manner prescribed by the collective agreement on liability.

In case of refusal of employees to pay the damage caused to the employer, or in the event of disputes, the employer has the right to apply to the court with statement of claim on the recovery of the incurred damage, taking into account the requirements of the concluded agreement on collective liability.

According to clause 14 of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by the courts of legislation governing the material liability of employees for damage caused to the employer”, when considering employers’ claims, the courts need to check whether an agreement on collective liability has been concluded with taking into account the rules stipulated by the legislation of the Russian Federation.

If necessary, the court has the right to summon to the court session all members of the team, even those in respect of whom no claim has been filed, which is necessary for the correct determination of the responsibility of each of the employees.

When determining the share of responsibility of each of the employees, the court must establish the amount of damage to be repaid by each of the employees, taking into account the degree of guilt of each employee, the amount of the salary of each person, etc.

Exemption of the employee from collective liability.

According to. 3 art. 245 of the Labor Code of the Russian Federation, an employee who has signed an agreement on collective liability, if there are appropriate grounds, may be released by the court from paying damages to the employer, but the obligation to prove his innocence in causing damage to the employer or his property lies entirely on the employee himself.

The obligation of the employee to prove his innocence was confirmed in its Ruling of June 24, 2008 N 349-О-О by the Constitutional Court of the Russian Federation “On the refusal to accept for consideration the complaint of citizen B.E.V. to the violation of her constitutional rights by the third part of Article 245 of the Labor Code of the Russian Federation”.

In particular, the applicant in his complaint asks to declare unconstitutional Part 3 of Art. 245 of the Labor Code of the Russian Federation, since the norm establishes a presumption of guilt, which does not correspond to Part 1 of Art. 21, part 1, art. 23 and Art. 49 of the Constitution of the Russian Federation.

In turn, the Constitutional Court of the Russian Federation noted in its Ruling that part 3 of this article cannot be considered as violating the rights of an employee, since when determining the degree of guilt of a member of a team (team), it allows taking into account specific circumstances.

Thus, if the employee manages to prove his innocence in court, the court will make an appropriate decision in favor of the employee, which will free the employee from the obligation to pay damages to the employer.

An individual entrepreneur appealed to the Abakan City Court with a claim against employees to recover the shortage from them on the basis of an agreement on collective liability.
In turn, the employees filed a counterclaim to invalidate the agreement on full liability, referring to the fact that the agreement on collective liability was signed by them in error.
On April 19, 2012, the Abakan City Court issued a decision on the case, which was rejected individual entrepreneur in satisfaction of his requirements, and also refused to satisfy the counterclaim of the defendants.
In refusing to satisfy the claims of the plaintiff, the court indicated that the employer had not created the proper conditions for the storage of material assets entrusted to the defendants.
An individual entrepreneur, disagreeing with the decision of the court, filed an appeal, which was accepted for consideration by the Judicial Collegium for civil affairs Supreme Court of the Republic of Khakassia.
In its ruling dated July 24, 2012, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Khakassia, with reference to the clarifications of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52, indicated that when considering such cases, the employer must prove:
- unlawful behavior of employees;
- a causal relationship between the behavior of workers and the resulting damage;
- the presence of direct damage to the employer and compliance with the rules for concluding an agreement on collective liability.
As follows from the case file, and this was also established by the Judicial Board, the employer did not create the proper conditions for the storage of material assets entrusted to the defendants.
In addition, according to the court, the plaintiff did not present evidence at the hearing, testifying to the indisputable guilt of the defendants.
Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Khakassia upheld the decision of the Abakan City Court dated April 19, 2012, and the plaintiff's appeal was dismissed.

Refusal of an employee to sign a collective agreement on liability and possible consequences.
In practice, including judicial practice, there are cases when employees refuse to sign an agreement on collective liability.
Under such circumstances, you need to know the following.

According to Art. 232 of the Labor Code of the Russian Federation, the material liability of the employee is formalized additional agreement to an employment contract.
Based on Art. 245 of the Labor Code, when it comes to the joint performance of work, liability can only be formalized by a collective agreement. Responsibility is borne by all employees (group of persons) who perform the work.

When concluding an agreement on collective liability, the employer is obliged to proceed from changes in organizational or technological working conditions (clause 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

The employer is obliged to notify employees of these changes in accordance with Art. 74 of the Labor Code of the Russian Federation in writing.
If the employees do not agree to the new working conditions, the employer is obliged to offer the employees all available other vacancies.
If there is no other job for employees, or employees have refused the offered vacancies, the employment contract with the employee may be terminated on the basis of paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Possibility of termination employment contract on the above grounds, it is confirmed by the position set forth in the resolution of March 17, 2004 No. 2 of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.

In particular, it follows from the resolution that when considering issues of reinstatement of employees at work in connection with dismissal in accordance with clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the employer is obliged to prove that the change in the terms of the employment contract was the result of changes in organizational or technological working conditions, and all this did not worsen the position of employees.

In the absence of relevant evidence from the employer, the dismissal of employees under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation cannot be recognized as legal.

In other words, if the employer has really good reasons for changing the terms of the employment contract, then the employee should be wary of being fired under Art. 77 of the Labor Code of the Russian Federation and not be reinstated at work through the court.

Thus, the circumstances under which collective liability can be introduced at an enterprise are provided for by Art. 245 of the Labor Code of the Russian Federation.

The very possibility of introducing collective liability is confirmed by the relevant judicial practice given above.
The employer can be recommended to take seriously the procedure for concluding an agreement on collective liability due to the fact that if employees refuse to sign a collective agreement, it is necessary to predict the possible negative consequences of this for the organization, including those related to the prospect of litigation in the future.

An employee who refuses to sign an agreement on collective liability should think carefully before doing this, as he can not only be offered another job, but also terminate the agreement with him on the basis of paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

At the same time, if the employee is confident in his rightness and professionalism, he must always remember that it is possible to prove his innocence in court.

In general, there is every reason to state that the practice of concluding agreements on collective liability between the employer and employees should be recognized as positive due to sufficient regulation appropriate procedures and taking into account the economic feasibility for the employer.

Filina Anna, Senior Legal Counsel of GS EL - PRAVO LLC:

In accordance with paragraph 4 of the Decree of the Plenum of the Supreme Court dated November 16, 2006 No. 52 (as amended on September 28, 2010) “On the application by the courts of legislation governing the liability of employees for damage caused to the employer”, the employer is obliged to prove the following circumstances:
- the absence of circumstances excluding the material liability of the employee (Article 239 of the Labor Code of the Russian Federation);
- unlawfulness of the behavior (action or inaction) of the tortfeasor;
- fault of the employee in causing harm;
- causal relationship between the employee's behavior and the resulting damage;
- the presence of direct actual damage;
- the amount of damage caused;
- compliance with the rules for concluding an agreement on full liability.

Clause 8 of the Resolution of the Plenum of the Supreme Court dated November 16, 2006 No. 52 indicates that when considering a case on compensation for direct actual damage caused to the employer in full, the employer is obliged to provide evidence indicating that, in accordance with the Labor Code of the Russian Federation or other federal laws the employee may be held liable in full for the damage caused and at the time of its infliction has reached the age of eighteen, except for cases of intentional damage or damage in a state of alcoholic, narcotic or other toxic intoxication, or if the damage was caused as a result of a crime or administrative offense when an employee can be held fully liable before reaching the age of eighteen (Article 242 of the Labor Code of the Russian Federation).

It is necessary to pay attention to the second paragraph of paragraph 4 of the above resolution, which states that if the employer proves the legitimacy of concluding an agreement on full liability with the employee and the employee has a shortage, the latter is obliged to prove that he is not guilty of causing damage.

In accordance with clause 5 of the above resolution, an employee cannot be held liable if the damage arose as a result of force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee (Article 239 TC RF).

The Supreme Court of the Russian Federation determined that “normal economic risk can be attributed to the actions of an employee that correspond to modern knowledge and experience, when the goal could not be achieved otherwise, the employee duly performed the duties assigned to him, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people.

The Supreme Court of the Russian Federation also emphasized that the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee may serve as a basis for refusing to satisfy the employer’s requirements if this caused damage.

Thus, the possibility of recovering from employees the damage caused to the employer in full in court depends on the ability of the employer prove the following facts :

• Availability labor relations with employees; compliance with the rules for concluding an agreement on collective (brigade) full liability;
• creation of conditions for the safety of property entrusted to employees;
• the absence of circumstances excluding the material liability of the employee (Article 239 of the Labor Code of the Russian Federation);
• the presence of direct actual damage;
• the amount and cause of the damage caused;
• unlawful behavior (action or inaction) of employees;
• a causal relationship between the employee's behavior and the resulting damage;
• compliance with the procedure for bringing to liability.

As a rule, questions about bringing employees to liability arise after the inventory. The procedure for conducting an inventory is determined by the Order of the Ministry of Finance of the Russian Federation of June 13, 1995 N 49 (as amended on November 8, 2010) “On Approval Guidelines on the inventory of property and financial obligations” (hereinafter - the Guidelines). That's why Special attention when proving the existence of a causal relationship between the employee's behavior and the resulting damage, it is necessary to pay attention to proving compliance with the inventory procedure.

For example, according to clause 2.8. Guidelines for the inventory of property and financial obligations, verification of the actual availability of property is carried out with the obligatory participation of financially responsible persons. If the inventory documents (collation sheet, etc.) do not contain records of employees held liable, then such violations of the Guidelines for the inventory of property and financial obligations, approved by the Order of the Ministry of Finance of Russia, may cause the court to refuse to satisfy the employer's claim for the recovery of full material liability from employees (see the cassation ruling of the Perm Regional Court of December 21, 2011 in case N 33-12915, the ruling of the Leningrad Regional Court of February 16, 2011 N 33-779 / 2011).

It is also advisable to pay attention to judicial practice in terms of the design and content of acts of inspections based on the results of an inventory, audit. Thus, in the decision of the Ordzhonikidzevsky District Court of Ufa of the Republic of Bashkortostan dated January 21, 2011 in case No. 2-80/2011 it is stated: the resulting damage, it was established who and under what circumstances carried out, in addition to the defendants, the sale of goods, which documents were drawn up for the transfer of inventory items. When imposing material liability on an employee, there must be a direct causal relationship between the actions or inaction of the employee, his guilt and the damage incurred by the employer; the procedure for conducting an inventory and processing its results was observed, comply with the requirements of the current legislation, including the Federal Law “On Accounting” dated DD.MM.YYYY No. 129-FZ, Order of the Ministry of Finance of Russia dated DD.MM.YYYY No. 49 “On Approval of Guidelines on the inventory of property and financial obligations, ”Order of the Ministry of Finance of the Russian Federation dated DD.MM.YYYY No. n, documents must be submitted indicating that at the time of the audit the store was closed and sealed, that goods were not released and received.”

The sample collective liability agreement 2019, which you will find in the article, will help protect the interests of the organization.

When is a collective liability agreement needed?

In accordance with Article 244 of the Labor Code of the Russian Federation, an employer may conclude liability agreements with employees in the event that it is impossible to distinguish between the responsibility of each employee for causing harm.

Agreements on full collective (team) liability can only be concluded with those employees who perform work included in the List of positions and work approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

Such an agreement can be concluded, for example, with a team of warehouse workers, since they perform the work provided for by the specified List, namely: acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets. However, remember that it is impossible to prepare a sample agreement on the collective liability of the seller, in this case you will need an agreement on individual liability.

Sample agreement on full collective liability

Decree of the Ministry of Labor dated December 31, 2002 No. 85 provides for type form liability agreements. You can use it to prepare, for example, a sample collective liability agreement for a store.

With whom you can enter into an agreement

Order of the USSR Ministry of Trade of August 19, 1982 No. 169 approved "Instructions on the procedure for the application in state trade of legislation regulating the liability of workers and employees for damage caused to an enterprise, institution, organization." According to clause 3.7 of the Instructions, agreements on full collective responsibility cannot be concluded with the following persons:

• employees of a small retail network (delivery and peddling trade, trade in tents, kiosks, etc., including those located separately on the trading floor), as well as with other persons with whom an individual agreement on full liability has been concluded;
• persons employed on a part-time or part-time working week, if they, together with other employees, do not dispose of commodity values ​​(these persons may be sent to independent work areas with full individual responsibility);
• workers of auxiliary professions (ironers, cutters, etc.);
• junior service personnel, loaders, auxiliary (transport) workers, watchmen;
• persons under the age of 18;
• trainees of educational institutions, students studying directly at trade enterprises;
• graduates of higher and secondary special educational institutions and institutions of vocational education, as well as persons who have been trained at the workplace, during the first year of work, who do not have experience in working with material values. These employees are prohibited from entrusting independent work on servicing material assets outside the enterprise (delivery and peddling trade, trade in tents, stalls, etc.).

The instructions continue to this day, but the order in which they are applied has not been determined. In this regard, this document can be used as a recommendation, since the binding nature of its norms Labor Code RF, nor other federal laws established.

However, this normative act contains important clarifications that are not reflected in the current legislation. So, for example, according to clause 2.6 of the Instructions, the brigade's liability for valuables located on the trading floor (in production) and in the utility room can be established if:

• the utility room is used by only one group of workers, all of them have free access to material assets located both in the trading floor and in the utility room, and participate in all trade, warehouse and production operations;
• all commodity operations of production, auxiliary warehouse, commodity-money operations of the trading floor constitute a single process of work and are controlled by all its members.

The employer can use these provisions when organizing the safety of property entrusted to the team.

How to conclude an agreement on collective liability

The decision of the employer to establish full collective (team) liability is formalized by order or instruction. Members of the team must be familiarized with the document under the signature.

Since there is no unified form of the order, the employer has the right to develop it independently. The order should contain the following information:

• on the formation of a team (team);
• on the appointment of its head;
• on the conclusion of an agreement on full collective liability.

A sample of filling out an order on the establishment of full collective liability

The order must be attached to the concluded agreement on full collective (brigade) liability (paragraph 2, clause 1 of Appendix No. 4 of the Decree of the Ministry of Labor of Russia of December 31, 2002 No. 85).

The procedure for recovering damages under a collective liability agreement

In case of detection of damage subject to compensation by the brigade, the employer is obliged:

1. Document the amount of damage.
2. Ask all employees of the team for explanations on the fact of the damage.
3. Establish a causal relationship between damage and the performance/non-performance of job duties by employees.

The damage to be compensated by the team is distributed among the members of the team in proportion to the monthly tariff rate (official salary) and the time actually worked for the period from the last inventory to the day the damage was discovered (clause 7.3 of the Instructions). Judicial practice recognizes this method of calculating damages as logical and lawful (clause 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52, the Moscow City Court of June 29, 2010 in case No. 33-16601).

It should be borne in mind that, according to Part 4 of Art. 245 of the Labor Code of the Russian Federation, the degree of guilt of each member of the team is determined by agreement between all members of the team and the employer. Therefore, the employer must draw up an agreement with the employees, which will indicate the amount of compensation for each of them.

The very amount of damage payable by a particular employee, in accordance with clause 7.3 of the Instructions, can be determined by the following formula:

R 1 \u003d C x Z 1 / (Z 1 + Z 2 + ... + Z n),

• P1 - the amount of compensation for damage by the first member of the brigade;
• C is the amount of damage;
• З1, З2, З3, ... Зn - the salary of the team members for the inter-inventory period according to salaries, taking into account the hours worked.

When calculating the amount of compensation for damage, wages do not include bonuses received by members of the team, as well as severance pay, compensation and other payments, which, according to the law, are not levied.

Accordingly, after determining the amount of damages, a written agreement is drawn up on the amount and procedure for its repayment. The agreement is drawn up by all members of the team and signed by them and the employer.

If the damage is recovered in court, the degree of guilt of each member (team) is determined by the court (part 4 of article 245 of the Labor Code of the Russian Federation).

The current legislation does not provide for the joint and several liability of employees with whom an agreement on collective liability has been concluded in case of harm to the employer.