On behalf of the Russian Federation
of October 6, 2021 No. 43-P
On the case of check of constitutionality of part five of article 157 of the Labor Code of the Russian Federation in connection with the claim of the citizen L. A. Minina
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges K. V. Aranovsky, G. A. Gadzhiyev, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, V. G. Yaroslavtsev,
being guided by Article 125 (the part Item "and" 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in meeting without carrying out hearing case on check of constitutionality of part five of article 157 of the Labor Code of the Russian Federation.
Reason for consideration of the case was the claim of the citizen L. A. Minina. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by the declarant.
Having heard the message of the judge-speaker S. P. Mavrin, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. The part five of article 157 of the Labor Code of the Russian Federation provides that if creative specialists of mass media, the organizations of cinematography, TV and video film-making collectives, theaters, the theatrical and concert organizations, circuses and the other persons participating in creation and (or) execution (exhibiting) of works according to the lists of works, professions, positions of these workers approved by the Government of the Russian Federation taking into account opinion of Russian Trilateral Commission on the Regulation of Social and Labour Relations during any time do not participate in creation and (or) execution (exhibiting) of works or do not act, then the specified time idle time is not and can be paid in the amount of and procedure which are established by the collective agreement, the local regulation, the employment contract.
1.1. Constitutionality of the given legislative provision is disputed by the citizen L. A. Minina working in autonomous cultural institution of the Udmurt Republic "State opera and ballet theater of the Udmurt Republic of P. I. Tchaikovsky" as the actor-vocalist (soloist) based on the employment contract signed on January 1, 2001.
According to Item 5.11.2 of the collective agreement signed on June 21, 2019 between employees of the specified organization (theater) and organization for 2019 - 2022 in the period of theatrical season and preparation for its beginning (September - May) time during which separate employee categories for month do not participate in creation and (or) execution of performances and also in rehearsal work (lessons, scenic movement, trial, self-preparation - according to the schedule under control of the employer), idle time is not and paid in the amount of two thirds of the tariff charge (salary) calculated in proportion to unemployment time in rehearsal process and performances of the current repertoire.
Based on this collective agreement the order of the theater director of October 11, 2019 provided compensation of certain actors-vocalists (soloists), including L. A. Minina, in the period of unemployment in rehearsal process and performances of the current repertoire from October 16, 2019 to December 31, 2019 proceeding from two thirds of the tariff charge (salary) established by it.
Believing that this order violates its labor rights, L. A. Minina appealed to October district court of the city of Izhevsk of the Udmurt Republic by which decision of February 26, 2020 left without change appeal determination of judicial board on civil cases of the Supreme Court of the Udmurt Republic of July 6, 2020 it was refused satisfaction of requirements of the declarant about recognition of the disputed order illegal. At the same time courts, referring including to part the fifth article 157 of the Labor Code of the Russian Federation, came to conclusion that this order is issued based on the collective agreement which, in turn, corresponds to the labor law and does not worsen situation of workers. Any contradictions between the employment contract signed with the declarant, and the collective agreement regarding payment terms of work by courts are not revealed.
Determination of the Sixth court of cassation of the general jurisdiction of September 3, 2020 the writ of appeal L.A. To Minina on the specified judgments it is left without satisfaction, and by determination of the judge of the Supreme Court of the Russian Federation of November 19, 2020 it is refused transfer of the writ of appeal of the declarant for consideration in judicial session of Judicial board on civil cases of the Supreme Court of the Russian Federation.
According to L.A. Minina, the part five of article 157 of the Labor Code of the Russian Federation applied by courts in its specific case does not correspond to Articles 4 (part 2), 19 (parts 1 and 2), 37 (parts 1 and 3) and 55 (parts 2 and 3) Constitutions of the Russian Federation in that measure in what this regulation - in the sense given it in system of the operating legal regulation by the developed law-enforcement practice - excludes creative specialists of the mass media, the organizations of cinematography, TV and video film-making collectives, theaters, the theatrical and concert organizations, circuses and other persons participating in creation and (or) execution (exhibiting) of works from coverage of general regulations of the labor law, and also are allowed by temporary unilateral change of conditions by the employer of the employment contracts signed with such workers does not fix any specific guarantees of payment of their work and assumes payment of the periods, during which the specified workers do not participate in creation and (or) execution (exhibiting) of works or do not act, only provided that the size and procedure for the corresponding payment is established by the local regulation, the collective or employment contract.
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