RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of June 2, 2015 No. 21

About some questions which arose at courts in case of application of the legislation regulating work of the head of the organization and members of collegiate executive body of the organization

For the purpose of ensuring unity of practice of application by courts of the legislation regulating work of the head of the organization and members of collegiate executive body of the organization, and also considering arising at courts by consideration of this category put questions, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:

1. Legal regulation of work of the head of the organization is performed by the Labor Code of the Russian Federation (further - the Labor Code of the Russian Federation), other Federal Laws and other regulatory legal acts of the Russian Federation, the laws and other regulatory legal acts of subjects of the Russian Federation, regulatory legal acts of local government bodies, constituent documents of the organization, local regulations, the employment contract (Article part one 273, the article 274 Labor Code of the Russian Federation).

Provisions of Chapter 43 of the Labor Code of the Russian Federation "Features of regulation of work of the head of the organization and members of collegiate executive body of the organization" extend to heads of the organizations (directors, the CEOs, etc., temporary sole executive bodies of economic societies, etc.) irrespective of their forms of business and patterns of ownership unless the head of the organization is the single participant (founder), organization member, the owner of its property (for example, the head of private institution which is created by him). Provisions of Chapter 43 of the Labor Code of the Russian Federation are not applied in case of transfer of management of the organization for the agreement of other organization (management company) or the individual entrepreneur (managing).

On the members of collegiate executive body of the organization (board, directorate of economic society, etc.) who signed the employment contract with the organization (further - members of collegiate executive body of the organization), owing to part one of the article 281 Labor Code of the Russian Federation the features of regulation of work established by Chapter 43 of the Labor Code of the Russian Federation for the head of the organization can extend if it is provided by the Federal Laws, constituent documents of the organization.

2. By consideration of the disputes connected using the legislation regulating work of the head of the organization and members of collegiate executive body of the organization, courts should recognize that the head of the organization is the employee of the organization who is carrying out special labor function according to the employment contract signed with it (Article part one 15, part two of the article 57 Labor Code of the Russian Federation). Labor function of the head of the organization owing to part one of the article 273 Labor Code of the Russian Federation consists in implementation of management of the organization, including accomplishment of functions of its sole executive body, that is in making on behalf of the organization of actions for realization of its rights and obligations arising from civil, employment, tax and other legal relationship (powers of the owner on ownership, use and the order of property of the organization, the owner of exclusive rights on results of intellectual activities and means of individualization, the rights and obligations of the employer equated to them in employment relationships with other employees of the organization, etc.).

Provisions of Chapter 43 of the Labor Code of the Russian Federation extend to heads of industry (functional) or territorial authorities of administrations of municipalities (for example, committees, managements, departments) which are founded as the legal entity according to part 3 of article 41 of the Federal Law of October 6, 2003 No. 131-FZ "About the general principles of the organization of local self-government in the Russian Federation".

Action of regulations of Chapter 43 of the Labor Code of the Russian Federation does not extend to the workers performing management of separate fields of activity of the organization (for example, the artistic director of the theater performing management of creative and art activities of theater, the research supervisor of the scientific organization providing forming of the priority directions and (or) scopes of scientific research) or separate structural divisions of the organization, including branches, representations or other isolated structural divisions, without assignment of functions of sole executive body of the organization on them.

3. Permission of employment disputes between the worker - the head of the organization, the member of collegiate executive body of the organization (including being) and the employer owing to Item 1 of part 1 of article 22 of the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation) and Articles 382, is of 391 Labor Code of the Russian Federation within competence of the courts of the general jurisdiction. In particular, cases concern to them:

about contest by heads of the organizations, members of collegiate executive bodies of the organizations of decisions of authorized bodies of the organizations or persons (bodies) authorized by owners about early termination of their powers which arose owing to the employment contract;

in claims of one party of the employment contract to other party of the employment contract about contest and recognition not subject to application of conditions of employment contracts with heads of the organizations, members of collegiate executive bodies of the organizations, including about the amount of compensation, dismissal wage payment, compensations and (or) other payments in connection with the termination of the employment contract;

about contest by heads of the organizations, members of collegiate executive bodies of the organizations of application of measures of disciplinary responsibility to them.

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