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Equal responsibilities - unequal salaries. Equal responsibilities - unequal salaries What Rostrud says

The basis for remuneration is many principles that depend on the prevailing form of ownership in social production, state policy in ensuring the minimum wage, the level of development of the national economy, the national wealth of the country, etc.

The organization of remuneration should be based on the following principles:

a) equal pay for equal work;

b) differentiation of wages depending on the quantity and quality of labor;

c) justification of payment;

d) flexibility of remuneration systems;

e) ensuring a material interest in high final results, for which an important condition is necessary.

f) systematic increase in the level of wages, which is caused not only by rising prices, but also by the law of increasing human needs;

g) faster growth rates of labor productivity compared to wage growth;

h) independence of enterprises in determining specific wages, in addition to the minimum level of wages, which is established by the state.

The principle of equal pay for equal work is a fundamental principle of remuneration. Labor legislation, in accordance with generally accepted international standards, enshrines this principle of remuneration. First of all, this principle is enshrined in the provisions of the Universal Declaration of Human Rights, adopted by the UN General Assembly on December 10, 1948. Article 23 of the Declaration provides that everyone, without any discrimination, has the right to equal pay for equal work and to fair and satisfactory remuneration that ensures a decent human existence for himself and his family. Universal Declaration of Human Rights: adopted by the UN General Assembly on 10.12.1948 // Russian newspaper. - 1995. - No. 67. In accordance with the principles enshrined in the Declaration, Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law. This right refers to the basic labor rights of the employee. At the same time, it can be considered as a principle of legal regulation of wages.

When establishing any wage system for work of equal duration and complexity, equal pay must be provided. In accordance with Article 22 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with equal pay for work of equal value. Unreasonable differences in wages, i.e. differences not related to the employee’s business qualities, the quantity and quality of his work are considered discrimination (Article 3, 132 of the Labor Code of the Russian Federation) Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ (as amended and additionally coming into force from 01.09.2013) // NW RF. - 2002. - No. 1 (part 1). - St. 3. .

That is, this principle means preventing discrimination in wages by gender, age, nationality and religion, etc., as well as maintaining fairness in the distribution of wages at the enterprise on the basis of an adequate assessment of equal work through its payment.

The next principle is the principle of differentiation of wages depending on the quantity and quality of labor.

Wage differentiation is the establishment of unequal wage levels for different categories of workers in certain industries and regions of the country. Reflects the difference in the duration and intensity (intensity) of workers’ work, in the complexity of their working conditions, in the qualifications of workers, as well as in the social significance of a particular type of work.

The principle of differentiation of wages - differentiation of earnings is carried out on the basis of criteria for the qualifications of workers and the complexity of the functions they perform, taking into account working conditions and the results of the enterprise as a whole.

In the general system of wage differentiation, intra-industry, inter-industry and inter-district differentiation are distinguished. Intra-industry and inter-industry differences in wage levels are ensured by the tariff system and the use of incentive payment systems.

Intra-industry wages establish differences in payment by qualification and professional groups of workers in accordance with the complexity of the labor functions performed, as well as by type of production and working conditions.

Intersectoral wages are formed, first of all, under the influence of the characteristics of the labor process in individual industries (the content of labor functions, industry-wide working conditions, professional qualification structure of workers, etc.), as well as under the influence of the role and importance of various industries in technical progress and development of the entire national economy.

Interdistrict wages are determined by the sectoral structure of production by region, the importance of economic regions and the prospects for their development, as well as their natural and climatic conditions. The purpose of state-established differences in wage levels across regions of the country is to provide equal conditions for the reproduction of the labor force due to differences in the structure of consumption and the price level for a number of consumer goods. The establishment of differences in pay by region is also dictated by the need to attract and retain personnel in those regions that lack labor force. State regulation of wages in regions of the country is carried out through a system of regional coefficients for wages.

The Labor Code of the Russian Federation allows the parties to an employment contract to independently determine the amount of remuneration by agreement of the parties and without limitation to the maximum limit. At the same time, in Article 7 of the International Covenant “On Economic, Social and Cultural Rights” of 1966, On Economic, Social and Cultural Rights: International Covenant [dated 16.12.1966] // Bulletin of the Armed Forces of the Russian Federation. - 1994. - No. 12. provides for the right of everyone to remuneration that ensures, at a minimum, fair wages and equal pay for work of equal value without any distinction; a satisfactory existence for themselves and their families.

Article 37 of the Constitution of the Russian Federation, as well as Article 132 of the Labor Code of the Russian Federation, proclaimed the inadmissibility of discrimination when establishing and changing wage conditions.

According to Article 3 of the Labor Code of the Russian Federation, persons who believe that they have been discriminated against in the world of work have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage.

Article 2 of the Labor Code of the Russian Federation enshrined as one of the basic principles of legal regulation of labor and other relations directly related to them, ensuring the right of every employee to timely and full payment of fair wages. The words “fair wages”, as a rule, are perceived differently by employees and employers, not to mention the obviously evaluative nature of this concept.

Fair wages require the establishment and application of uniform criteria that determine the amount of wages, which must be taken into account when increasing them, namely:

Employee qualifications;

The complexity of the work being performed;

Quantity and quality of labor expended.

When hiring, wages must be set based on the listed criteria. It is advisable to justify an increase in wages, guided by the fact that in the process of work of each specific employee it is possible to increase the level of qualifications of this employee.

The next principle is the flexibility of remuneration. The remuneration system provides the greatest flexibility in determining the earnings of workers of all categories and positions, taking into account the effectiveness of their work, professionalism and personal qualities.

Internal, microeconomic wage flexibility is associated with the performance of the enterprise, i.e. its profitability and profitability, as well as with the individual performance indicators of the employee himself. Currently, almost 80% of workers in economically developed countries are on time-based wages and a set production rate. Therefore, an employee’s individual remuneration reflects both the characteristics of the profession and personal motives for work, which influence the evaluation of work. The center of gravity in determining the amount of earnings has been moved to the enterprise level. Starting from the moment of hiring, the employer strives to individualize the work with the employee. An individual approach to increasing wages is built taking into account the following basic provisions that form the system:

a) determination of the minimum annual wage for each category of workers, taking into account all payments;

b) unequal increase in wages within the framework of a predetermined increase in the total wage fund;

c) refusal to index wages as prices rise and switch to increasing them depending on the personal merits of workers;

d) taking into account the employee’s merits, and not his length of service, when deciding on personal salary increases;

e) determination of methods for assessing the individual merits of an employee.

The material interest of workers in better labor results at the present stage is becoming an increasingly effective force for the development of social production and increasing its efficiency.

Material interest is ensured, first of all, through distribution by labor, which makes the earnings of each worker and his material well-being dependent on the quantity and quality of his work in social production.

With material interest, a prerequisite is the unlimited salary, that is, the maximum level of salary should not be limited. Wage growth is restrained indirectly through the tax system.

Raising living standards is the most important task of social policy. In the Russian Federation, it is necessary to quickly restore incomes and maximize the effective demand of the population.

Today it is necessary not just to increase wages, but to increase their purchasing power. Measures to increase the purchasing power of wages should combine periodic revisions of nominal wages with their indexation in the intervals between individual revisions. This is due to the need to maintain the purchasing power of wages in conditions of inflation.

A systematic increase in purchasing power can be ensured by a set of measures to increase nominal accrued wages, introduce changes to the taxation of individuals, regulate prices for the most important consumer goods and services, develop the consumer market, etc.

The problems of increasing labor productivity, its remuneration and choosing the necessary ratio of their growth rates have been and are relevant and widely discussed for many years.

At the same time, the issue of labor productivity should be considered in connection with wages and living standards. With low wages, one cannot talk about productivity growth, just as with low and declining productivity one cannot talk about decent wages and its growth.

In the Russian economy, there is both an incredible increase in wages against the backdrop of declining labor productivity, and an increase in labor productivity while falling wages. In today’s operating conditions of the country’s economy, the situation is also aggravated by the artificially maintained high formal employment, even against the backdrop of falling wages.

The faster growth of labor productivity compared to the growth of wages does not generate inflation. In the case of an inverse relationship, inflation occurs, since too high rates of wage growth disrupt the relationship between labor costs and remuneration, which also leads to a decrease in labor productivity.

Speaking about the fact that an employee cannot be paid more than what he earned, we must also remember that one cannot pay significantly less, which is also typical of the Russian economy.

It is necessary to maintain proportionality, thereby fully utilizing the stimulating role of wages. We should not forget that low wages have a negative impact not only on labor activity, but also create insufficient effective demand of the population.

We must not forget that an enterprise or organization has the right to independently determine the level of wages for employees, but not lower than the minimum wage established by the state.

It is not uncommon for employees to feel that they are being discriminated against in terms of pay compared to their colleagues. Well-structured, justified and legitimate criteria for the difference in wages help an employer win a lawsuit. Let's consider what ways there are to justify differences in wages.

In the practice of labor relations between employees and employers, many problems arise regarding remuneration. In particular, situations when an employee considers himself financially undervalued and is ready to make claims to the employer, based on the fact that his colleague occupying the same position is paid more. Often, employers, wanting to minimize such conflicts, make wages a trade secret. But this only arouses the curiosity of employees. Moreover, it is impossible for the employer to control the violation of such a prohibition.

It is interesting that even in companies with a high corporate culture and a reasonable remuneration system, a situation may arise when an employee considers himself discriminated against in wages and goes to court, demanding to recover the underpaid difference from the employer. Often such cases arise when the employee has already quit.

Prohibition on establishing unjustified differences in wages

Analysis of the norms of the Labor Code of the Russian Federation

In Art. 3 of the Labor Code of the Russian Federation contains a ban on discrimination in the world of work: no one can be given preference that is not related to the employee’s business qualities.

According to “an employee has the right to timely and full payment of wages in accordance with his qualifications, complexity of work, quantity and quality of work performed.” It contains the employer's obligation to “provide employees with equal pay for work of equal value.” Article 132 of the Labor Code of the Russian Federation once again declares these provisions. We also note that in accordance with Art. 57 of the Labor Code of the Russian Federation, wages are established in the employment contract between the employee and the employer, i.e. is of a contractual nature.

An analysis of these norms allows us to conclude that the employer is squeezed into a rather narrow legal corridor: the remuneration of each employee must be individual, “according to work,” but fair, not violating the rights of other workers performing the same work. In reality, it is quite difficult to gradate the value of an employee’s business qualities and the quality of the work he performs. The situation is a little less complicated only with the amount of work performed, and then only in a situation where it can be measured in certain “natural” indicators: in the number of parts manufactured by the worker, calls made by the operator, documents processed. Where the work is more creative and less standardized, it is much more difficult to assess its quantity, and even more so its quality. Typical examples are the work of a designer, programmer, lawyer, in which the individual abilities of the employee have a large component, i.e. his business qualities.

In addition, it should be remembered that it contains different concepts related to payment for work: tariff rate, salary and wages (). The tariff rate and salary are fixed per unit of time or calendar month, respectively. And wages include all payments: a fixed salary (or tariff), and incentives, compensation payments (if they are established).

What Rostrud says

The greatest friction is caused by the situation when all wages are fixed and differ among workers of the same positions.

Let us present the position of the Federal Service for Labor and Employment, set out in letter dated April 27, 2011 N 1111-6-1 (hereinafter referred to as the Rostrud Letter). Officials noted that “when establishing salaries for positions of the same name in the staffing table, the salary amounts should be set the same, and the so-called “above-tariff part” of wages may be different for different workers, including depending on qualifications, complexity of work, quantity and quality labor."

This position represents the simplest way of an individual approach to assessing the work of specific employees: breaking down a fixed salary into a salary and various kinds of “allowances” - what Rostrud calls the “above-tariff part”.

Position of the Supreme Court of the Russian Federation

As for judicial practice, an important precedent confirming the inadmissibility of establishing different fixed wages for workers performing work of the same complexity is the following definitions of the Investigative Committee in civil cases of the Supreme Court of the Russian Federation.

Arbitrage practice. The ruling of the judicial panel for civil cases of the Supreme Court of the Russian Federation dated October 14, 2005 N 5-B05-120 sets out the history of a long-term lawsuit regarding the claim of pilots against the employer for the obligation to pay an unreasonable difference in wages. The essence of the matter is that the employer decided to transfer the flight crew to fixed-term individual employment contracts. For those workers who agreed to enter into them, the rate for flight hours was set higher than for those who refused such contracts. The organization's wage regulations stipulated this distinction.

The court stated in its ruling that “paying the plaintiffs less wages for equal work than other workers performing the same work, just because they did not sign individual employment agreements (contracts) with a limited duration, is a type of discrimination in payment for equal work and violates the constitutional rights of the plaintiffs,” by canceling the judicial acts of the lower courts, which denied the plaintiffs’ claim.

Arbitrage practice. A similar position is contained in the ruling of the Investigative Committee for Civil Cases of the Supreme Court of the Russian Federation dated December 22, 2006 No. 5-B06-110.

The judicial act describes a situation where the plaintiff was fired and then reinstated. And after restoration, she was given a reduced salary. According to the court, “establishing the plaintiff’s wages for equal work in a smaller amount than other senior experts of the department who had an equal salary with her before dismissal and performing the same work, only because she was subject to dismissal due to staff reduction, is one of the types discrimination in pay for equal work violates the plaintiff's constitutional rights." In this regard, the claims were satisfied.

As we see, the highest court also does not support the unjustified difference in fixed wages for labor. Cases where the establishment of such a difference is based on differences between the work performed by employees and their business qualities will be discussed in the next section.

How to justify the difference in wages

So, let's consider possible options for justifying the difference in wages for workers in the same position.

Employees have the same positions and qualifications, perform the same duties, but have different business qualities and have different salaries and/or allowances.

This situation is not uncommon, and, as a rule, employers set the same fixed salary, without going into differences between employees or rewarding the more efficient employee with bonuses. But if an employer wants to provide an individual approach to remuneration for work in the form of a fixed amount, without issuing orders for bonuses each time in relation to more productive employees, he should conduct a thorough analysis and comparison of the business qualities of employees. After all, it is precisely these qualities, other things being equal, that can act as an argument in establishing a higher salary for a more efficient employee.

Many modern companies use a system of positional levels, classes, grades, etc. Its essence is that within one position, employees are classified according to certain criteria: classes, grades, grades, levels. This approach is completely acceptable in accordance with labor legislation and is nothing more than a remuneration system, which, in accordance with Art. 135 of the Labor Code of the Russian Federation, the employer has the right to establish. Within the framework of such a remuneration system, employees are classified according to their business qualities, including through certification.

Unfortunately, the Labor Code of the Russian Federation does not disclose this concept and does not contain basic provisions on the procedure for conducting such certification. Employee certification is mentioned in Art. 81 of the Labor Code of the Russian Federation as one of the grounds for dismissal of an employee who has insufficient qualifications for the position held. However, many companies use this tool for much more positive purposes - to assess the business qualities of employees in order to individualize remuneration for work.

Arbitrage practice. An indicative example of this approach is demonstrated by the decision of the Isakogorsky District Court of Arkhangelsk dated May 28, 2012 in case No. 2-169/2012.

Thus, the plaintiff and his colleague were electricians of the 8th category, performed the same job duties, while the salaries of the employees were set differently. The plaintiff considered this state of affairs a violation of his rights and based his claim on discrimination on the part of the employer, demanding a recalculation of the underpaid wages based on the difference in salaries. But it was not without reason that the employer set different salaries for the two electricians. The company introduced a new remuneration system, and therefore adopted a methodology for establishing official salaries. It provided for a point assessment of the business qualities of employees, carried out by a special commission based on the developed parameters. The business qualities of electricians were assessed according to three criteria: length of service in the position, professional knowledge and skills, and quality of performance of official duties. According to these criteria, the plaintiff scored lower than his colleague, who had longer experience and performed his work better. Since the plaintiff considered the commission’s assessment of his business qualities to be biased, the court questioned witnesses who interacted with both employees. Witnesses confirmed that although both employees perform work of the same complexity, the plaintiff’s colleague does the work better, has more experience, and colleagues prefer to contact him more often than the plaintiff.

Based on the circumstances studied, the court made important conclusions:

- establishing the official salary is the right of the employer, is determined by the employment contract and depends not only on the qualifications of the employee, but also on the complexity of the work performed, the quantity and quality of labor expended;

- work in the same position does not mean the same volume, complexity and quantity; the employer has the right to individually determine the amount of remuneration;

- the establishment of different salaries was determined by the business qualities of each employee;

- an individual approach to remuneration for each employee complies with current labor legislation and does not constitute discrimination. Based on these theses, the court rejected the plaintiff’s demands.

Employees may be given not only different salaries, but also different bonuses depending on the business qualities of employees working in the same position.

Arbitrage practice. Let us give another example from judicial practice - the ruling of the Irkutsk Regional Court No. 33-5975/12 dated July 24, 2012.

The plot of the dispute was that the employee was reinstated at work by a court decision. The employer, forced to continue the employment relationship, based on the results of the certification, assigned the employee a lower rating than he had previously and set him a lower bonus to the base part of his salary. In addition, the rest of the employees received a base salary increase, but the plaintiff did not. At the same time, the job description was the same for all employees in this position. The plaintiff considered these circumstances to be discrimination, and therefore filed a lawsuit. The court rejected the claim, motivating its decision with arguments similar to those given in the previous judicial act.

In our opinion, the position of the courts is completely justified and reasoned, although it does not agree with the position set out in the Letter of Rostrud. But here it should be noted that the Letter is not mandatory for use, it is only the opinion of an official of the regulatory body, an alternative position on this issue.

It is also worthy of attention how employers justified the difference in salaries: careful work was carried out to assess the business qualities of employees based on developed methods. This approach, although it represents an element of corporate bureaucracy, is a clear and understandable mechanism that makes it possible to equally ensure an individualized approach to remuneration and protect the company in the event of claims by “offended” employees.

Employees are in the same position, but have different responsibilities (job descriptions) and different salaries

This situation represents a simpler option for justifying the difference in fixed salary(s). Here, the employer does not need to evaluate (certify) employees, since differences in job responsibilities imply different business qualities of the employees performing these duties and, accordingly, different remuneration for the work of each employee. Let's look at a couple of examples of how this happens in practice and how the employer reflects the claims of dissatisfied employees.

Arbitrage practice. The ruling of the Krasnoyarsk Regional Court dated July 22, 2013 in case No. 33-6699 describes the following case. Two employees had the same title - “senior engineer for operation and optimization of the mobile network,” but their salaries were different. When an employee with a lower salary learned that his colleague had a higher salary, this was the basis for filing a lawsuit for discrimination and payment of the difference in wages.

The court examined the job descriptions of both employees and came to the conclusion that the higher-paid engineer had a broader range of job duties and higher responsibilities. Based on this, the court considered it legitimate to establish a larger salary for an employee with a wider range of duties and greater responsibility.

Arbitrage practice. A similar situation was considered in the appeal ruling of the judicial panel of the Penza Regional Court dated July 17, 2012 No. 33-1679. One of the three employees holding the position of legal adviser received a salary less than two of his colleagues, which served as the basis for filing a discrimination claim in court. The court examined the job descriptions of the plaintiff and his colleagues, questioned them as witnesses and came to the conclusion that the duties of the plaintiff’s colleagues were more complex and required specific knowledge in various areas of law and a greater degree of responsibility. Accordingly, the claim was denied. Thus, from the above examples it follows that in order to establish different salaries for employees in the same position, it is necessary that the range of their responsibilities differ in scope and complexity, which must be confirmed by the job description (and/or employment contract).

Employees of the same position and with the same responsibilities are given the same salary, but different bonuses

Perhaps one of the least complicated ways to establish different salaries for employees is to make the same salaries and introduce differentiating bonuses according to certain criteria. This is the case described in the case below.

Arbitrage practice. Two employees worked in the same position - “business development manager”. One had a significantly higher salary than the other, which is why the latter initiated a discrimination lawsuit. At the meeting, it was established that the more highly paid development manager had 10 years of work experience, but the plaintiff did not have one. At the same time, the staffing table provided for an increase in salary for length of service, and this is what explained the difference in wages. Based on such arguments, the court rejected the plaintiff’s claims (appeal ruling of the judicial panel for civil cases of the Moscow City Court dated May 16, 2012 No. 11-5036/2012).

Let us note that this position is most consistent with that set out in the Letter of Rostrud.

Having examined several typical situations for justifying “unequal wages,” one can see that the courts are quite loyal to employers in this matter. But it should be remembered that this is due to a clear documentary and factual justification for the difference between the fairly assessed business qualities of employees and/or the range of their responsibilities. Those companies that find ways to competently and fairly justify such differences, both internally and in litigation, have a high chance of success in the event of claims by aggrieved employees.

We also note that a situation where salaries are not equal may raise questions among state labor inspection bodies, which are closer to the position set out in the Rostrud Letter. Accordingly, there is a risk of being held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, if the labor inspector finds a violation of the law. This, however, does not prevent the employer from defending his position in court by appealing against such a conclusion of the labor inspectorate.

Also, some specialists have a system of grades, assessments, etc. It is recommended to establish different categories of positions within specific grades, for example, leading legal adviser of the 1st category, leading legal adviser of the 2nd category, etc. Accordingly, these will be separate positions, and if the employee’s grade changes, it is necessary to formalize a transfer to another job, which creates an additional burden on the personnel department.

It should also be noted that employees file claims because they do not have a very good idea of ​​what caused the difference in wages. This is also due to the opacity of the salary setting system: often employees simply do not understand why a colleague is paid more and why the difference in salaries is carefully hidden, which causes a feeling of injustice. In this direction, it is necessary to carry out explanatory work with staff, to explain the principles of forming remuneration for work in the company both to all employees and to a specific person who believes that he is financially undervalued. This will help in many cases eliminate brewing conflicts over unequal wages.

New edition of Art. 132 Labor Code of the Russian Federation

The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended and is not limited to the maximum amount, except for the cases provided for by this Code.

Any kind of discrimination in establishing or changing wage conditions is prohibited.

Commentary on Article 132 of the Labor Code of the Russian Federation

The application of Articles 3 and 132 of the Labor Code of the Russian Federation together gives grounds to assert: discrimination in wages is prohibited depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence, attitude to religion , political beliefs, membership or non-membership in public associations, as well as other circumstances not related to the employee’s business qualities.

The positive aspect of Part 2 of Article 132 of the Labor Code of the Russian Federation is the prohibition of discrimination not only when establishing, but also when changing the size and other conditions of remuneration. Every organization must ensure equal pay for equal work at all times. This principle is often violated in organizations where staff reductions are planned: by increasing wages for those who will continue to work in the future, the employer leaves the same salary (tariff rate) to persons warned about the upcoming dismissal for the two months that must pass from the date of the warning about dismissal before the day of termination of the employment contract. As a result, the dismissed employee receives smaller amounts not only in the form of wages, but also when making guarantee payments to him - severance pay, average earnings for two to three months after dismissal (Articles 178 and 180 of the Labor Code of the Russian Federation) and unemployment benefits . This occurs due to the fact that when calculating average earnings, the calculation takes into account his reduced (compared to employees of the same professions and positions) wages. In such cases, the employee has the right to appeal the employer’s actions in accordance with the procedure established by law.

Another comment on Art. 132 Labor Code of the Russian Federation

1. Article 132 establishes one of the principles of regulation of wages - payment depending on the quantity and quality of work without any discrimination. Its provisions correspond to the law, which establishes, as a principle of legal regulation of labor relations, ensuring the right of every employee to fair pay; Art. 21 of the Labor Code, which establishes the employee’s right to wages in accordance with his qualifications, complexity of work, quantity and quality of work performed; Art. 22 of the Labor Code, which establishes the employer’s obligation to provide employees with equal pay for work of equal value.

2. To establish the dependence of an employee’s salary on his qualifications, the complexity of the work performed, the quantity and quality of labor, tariff systems of remuneration are used (see Article 143 of the Labor Code of the Russian Federation and the commentary thereto).

3. In Art. 132 of the Labor Code of the Russian Federation contains an important rule that the wages of employees are not limited to the maximum amount. In conditions where the state does not use methods of direct regulation of wages and its size is entirely determined by the results of labor, the normative establishment of the maximum wage is impossible.

4. Part 2 art. 132 prohibits any kind of discrimination in setting and changing wages and other conditions of remuneration, which meets the requirements of ILO Convention No. 111 regarding discrimination in the field of labor and occupation (ratified by the USSR by Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961 / / USSR Air Force. 1961. N 6. Art. This means that it is prohibited to establish restrictions and advantages in the field of remuneration depending on any circumstances not related to the business and professional qualities of the employee - gender, race, skin color, nationality, language, origin, property, social and official status, age , place of residence, attitude to religion, political beliefs, membership or non-membership of public associations, etc. At the same time, the business and professional qualities of the employee (qualifications, quantity and quality of work, professional characteristics, the presence of additional professional skills used in work, responsible attitude to job responsibilities, etc.) not only can, but should also be included in basis for differentiation of wages.

5. Discrimination in the field of wages should be understood not only as the establishment of any restrictions, but also as the establishment of advantages not in connection with the business and professional qualities of the employee. Based on this, the legislator’s decision should be recognized as correct to establish payment for minor workers employed on short-time working hours, taking into account the duration of their work (with time-based payment) or the quantity of products produced (with piece-rate payment), since otherwise these persons would be provided with benefits according to sign of age.

I’ve been itching to write about this topic for a long time, and not least because it affects me personally. And, even if it were not touched upon, in the market Russian Federation this issue is surrounded by a bunch of new-made myths (which, by and large, are simply old ones that have not been well forgotten). So, let's try to figure out why employees working in the same organization, having similar qualifications and work experience, in positions of identical functionality can differ very significantly in wages, by 20% or more? At the same time, we will analyze several common fairy tales that exist in this area, from the authors: “you’re just jealous” and “you shouldn’t count money in someone else’s pocket.” In order not to make unfounded statements, the data will be presented based on my profession, work experience and personal observations. I’ll make a reservation right away that this is relevant for office work in Moscow; in the regions (with the exception of St. Petersburg, Novosibirsk, Tyumen, and a couple of regional centers) salaries can easily be divided by 2-3.

I work as a lawyer by profession; higher education from one of the leading Moscow universities, fluent knowledge of English, work experience in the specialty for more than 10 years. So it’s logical to start with the regulatory framework. Art. 3 of the Labor Code of the Russian Federation (LC RF) contains a ban on discrimination in the world of work: no one can be given preference that is not related to the employee’s business qualities. According to Art. 21 of the Labor Code of the Russian Federation, an employee has the right to timely and full payment of wages in accordance with his qualifications, complexity of work, quantity and quality of work performed, while Art. 22 of the Labor Code of the Russian Federation establishes the employer’s obligation “ provide workers with equal pay for work of equal value" Actually, this is one of the cornerstone provisions of labor legislation, along with a guarantee of vacation and an 8-hour working day. Those legal restrictions against the unrestrained exploitation of wage labor by capital, which were won with blood by generations of workers; an echo of the time when a 12-hour working day for adult men was considered normal, and for 10-hour work for children and teenagers it was necessary to go to the barricades.

With the change of the ruling class of our country to the bourgeois one, the provisions of the Labor Code of the Russian Federation on equal pay for equal work, like most of the norms adopted in favor and in the interests of workers, are more of a declarative nature. At the same time, while remaining legally enshrined, they provide, at a minimum, grounds for a formal legal analysis of this phenomenon, and in a broader sense, for a political economic one.

Despite their legislative codification, the norms of the Labor Code of the Russian Federation are usually circumvented by assigning different job titles (chief legal adviser, leading legal adviser, specialist of the first or second category, etc.) for the same functionality. Or by enrolling employees who actually work in one project into the staff of various legal entities (as, for example, at my work). Thus, the requirement of labor law is formally met: they say, what don’t you like, your staffing levels are different? At the same time, a purely legal analysis does not provide a real understanding of the causes of this phenomenon, unlike a political economic one.

The product of an individual’s productive labor (which can be understood as a product, a service provided, or work performed) has a dual nature, namely, use value and exchange value (or simply value). At the same time, not all products have exchange value, since they can be produced by the commodity producer for himself and consumed by him (“And immediately drank!”), and not all phenomena that have a price (for example, conscience, honor, beliefs) are goods , however, they can easily be bought and sold. At the same time, a product that does not have a use value cannot become a commodity, since otherwise it simply will not be in demand on the market. All values ​​are produced only and exclusively by human labor, which was established not by Karl Marx, but long before him, by the founders of political economy - Adam Smith and David Ricardo, and before them by ancient philosophers. The basis of modern capitalist production is the appropriation by the owner of the means of production (constant capital), i.e., the capitalist, of surplus value arising from the difference between the value that the labor of a hired worker adds to the product and the value of the labor power itself purchased by the capitalist (variable capital ). At the same time, confusion often arises in the concepts of “labor” and “labor force”. Labor is a productive, purposeful activity to transform the surrounding world, “a process... in which a person, through his own activity, mediates, regulates and controls the metabolism between himself and nature” (K. Marx). Labor has no value (which, in fact, is where Ricardo’s school stumbled), it creates it itself. Labor power is the totality of physical and intellectual characteristics that a person possesses to carry out his life activities; it is the “first productive force” (V. Lenin). Labor power, united with the instruments of production, adds a new value to the value already existing in the object of labor. Under a capitalist socio-economic formation, labor power is a specific commodity, the owner of which is a legally free wage worker, who exchanges it for the cash equivalent of the means of subsistence received from the capitalist. In most modern types of activity, labor power has no use value for the hired worker himself, since he is expropriated from the means of production, but it has use value for the employer. At the same time, labor that creates new values ​​must be socially useful, i.e. e. bring profit at average socially necessary costs.

The general formula of capitalist production is expressed as follows:

D (money) - T (product) - D’ (D+∆D).

The capitalist must advance the available money into constant capital (object of labor and instruments of labor, i.e. means of production) and variable capital (labor power), buy them at their values, add the “dead labor” contained in the raw materials through the living labor of the worker to a new product, and, ultimately, at the exit, after selling the new product, to receive more money than at the entrance. This truly alchemical reaction (before Marx, political economy also used the term “surplus value”, but was embarrassed to reveal its source) is possible due to the fact that the worker’s labor produces more value than his labor power is worth. With all this, the described phenomena are social processes; they do not exist outside of human society (as, for example, physical and chemical processes exist and occur). “Meanwhile, the commodity form and the relation of values ​​of the products of labor in which it is expressed have absolutely nothing in common with the physical nature of things and the relations of things arising from it. This is only a certain social attitude of people themselves, which in their eyes takes on a fantastic form of relationship between things. To find an analogy for this we would have to go into the obscure regions of the religious world. Here the products of the human brain are represented as independent beings, endowed with their own lives, standing in certain relationships with people and with each other. The same thing happens in the world of goods with the products of human hands” (K. Marx).

The extensive office superstructure over the production of goods and services in the historical sense appeared quite recently, a little over 150 years ago, depending on the degree of coverage of a particular country by capitalist relations. Actually, office workers currently exist in two forms (for which I use legal jargon) - the so-called. "inhouse", and employees of a specialized company. Inhouse is any “non-core” specialist at an enterprise, for example, a lawyer, accountant, marketer, system administrator, etc., whose position is included in the staff of, for example, an oil and gas or mining company. At the same time, employees of all the same specialties can exist in, so to speak, specialized form, i.e., they are hired employees in a company that provides exclusively legal, accounting, auditing, marketing or other services. It must be emphasized that all these specialties do not exist on their own, but, ultimately, are tied to the specific production of goods or services, for the owner of which the specific product they produce (usually in the form of services) has a use value, or directly to the individual consumer. What is typical is that in these areas this specific product can also be produced by representatives of the petty bourgeoisie - lawyers, notaries, programmers, individual experts and others who provide services independently, at their own peril and risk.

Wherever there is wage labor, there is surplus value

In modern leftist discourse, a popular question is whether the labor of office workers - various managers, economists, lawyers, accountants, programmers, marketers, designers and others - produces surplus value. I believe that this can be answered in the affirmative, since their labor has use value for the employer, and, in combination with the means of production, brings surplus value to the employer. In other words, wherever there is wage labor, there is surplus value. Another thing is that it is expressed in the product produced (goods or services) not directly, but in the form of additional necessary expenses. An analogy can be imagined if we remember what Marx writes in the first book of Capital about the auxiliary means of production: for example, premises for a factory, heating for warming workers, etc. So, for example, a fireman serving a steam engine in a spinning mill of the 19th century he himself is not a productive worker in the spinning industry, since he does not participate in the work on the machines, but the value created by his labor is also added to the value of the goods produced by the factory.

Returning directly to the issue of remuneration, if you listen to those of your acquaintances who, as they say, are well settled (you probably have some), be it a top manager, a petty bourgeois, or someone else, then in almost any conversation that he starts , at least once (in fact, much more often) and it will flash that he lives well because he “works a lot.” Moreover, this sounds almost like an excuse, as if the super-ego formed in childhood is thus breaking through. There are a lot of “packed” young men and women in dust-free jobs in state-owned companies and businesses, who were assigned to these positions by their parents, relatives or friends of relatives, and who, of course, “worked hard” for this (the same applies to the kept people of all sorts of important people who, undoubtedly, they also plowed under them). That is, the understanding that values ​​are still created by labor is still a no-no, and it breaks through the gloss of success and the straightened shoulders of the Atlanteans.

So, in 2014, I managed to get a job at a medium-sized company supplying the oil and gas sector. I’ll make a reservation right away that I will indicate the salary amounts in terms of salary, i.e. the amount received in hand will be less by the amount of personal income tax of 13%. Due to the fact that within six months it was not possible to find a job with a salary of 100 thousand, I had to reduce the so-called salary expectations to 85 thousand. At the time of joining the job, I had about 8 years of experience in my specialty and free English language proficiency. In my department there were two female lawyers with salaries of 90 thousand and 110 thousand, respectively, and the head of the legal department with a salary of 181 thousand. In 2015, the girl with a salary of 90 thousand quit, and a young man was hired in her place, but with a salary 95 thousand. In 2017, this young man was laid off, and my salary was increased by 10 thousand, to 95 thousand, and when the last girl from the old staff left, in her place, in 2018, they hired an employee with a salary of 115 thousand

At the same time, after the dismissal of the first girl in 2015, part of her work fell to me, and during the transition period, before a new person was hired and he had time to get used to his responsibilities, the workload on me increased by 1.5-2 times. But, to my surprise, his salary was immediately given 10 thousand more, so when I found out about this, surprise quickly turned into indignation. When I tried to discuss this issue with colleagues, the latter usually answered me in the following manner: “You “Probably the boss just doesn’t like you!” However, after working in a department for several years, an employee can usually understand the volume and complexity of his colleagues' work. So, the functionality, workload, qualifications, work experience and education of all of us, both new and old employees, were approximately the same (I even have an advantage in knowing a foreign language). At the same time, each subsequent person came with a higher salary, while my wages were not equalized. The boss answered something like this: you already understand everything, but if you don’t like it, quit! That is, over and over again I was faced with a situation where work, generally of equal value, was paid differently, invariably with an advantage in favor of those who got a job later.

When I told the rest of my acquaintances about the situation, they usually made the assumption that I was not working well or not enough, or that the employer was “wrong” (just like capitalism in Russia!). However, the newly hired person has not yet proven himself, and based on impressions from the interview alone, it is impossible to say whether he will perform at least as well as the existing employee. Again, thanks to various part-time jobs, more effort and overtime work, in certain months I managed to earn as much as my colleague with her salary of 110 thousand, who simply did her daily job for this money. That is, in order to receive an equivalent amount per month, I was forced to work more than my colleagues. It turns out that the difference in wages for identical positions is not characterized by the quality and quantity of labor expended, but by something else. With what?

Wages are the cost of living of an employee, historically established for a particular society, the cost of reproduction of his labor force. The average cost of reproduction of labor power consists of the sum of the means of subsistence not only of the worker himself, but also of his family members, who, so to speak, in old age are called upon to replace their parents “at the bench.” Applying this general position to a specific worker, we can express that the cost of reproducing the labor force of a lawyer with good qualifications and solid work experience consists of: the cost of food, household services and other things necessary to survive for a month, the cost of renting an apartment/mortgage payments , plus a certain premium - for the cost of training (graduates of leading Moscow universities receive more) and for the “prestige” of the work. The head of the legal department receives an additional bonus not so much for the fact that he is more experienced or his qualifications are higher, but for the fact that he performs the functions of a supervisor and forces his subordinates to work (who hasn’t noticed how office slaves relax as soon as the boss goes on vacation! ), and ultimately serves the interests of the business owner.

Naturally, the contradiction between the interests of the employer (capitalist) and the employee comes to the fore: the former wants to squeeze as much work out of him as possible, paying the bare minimum; the second is to spend as little labor as possible and get the maximum possible salary for it. This antagonism was absent in Soviet society: the worker received only part of the means of subsistence as a salary; a significant (if not most) part of them was distributed outside commodity circulation, not according to work, but according to needs. Accordingly, the management of a socialist enterprise had no objective reasons (except, of course, for failures, production of defective products, etc.) to cut off the worker’s wages, fine him, or infringe upon him. Part of the public goods in the form of the wage fund did not belong to either the director of the enterprise or the immediate superior of the employee. It’s a different matter with a capitalist OEF: although the boss does not own the wage fund (WF), however, he is obliged to pursue the interests of the owner: the less the employee is paid, the more profitable it is for the owner, the cheaper the variable capital for each specific employee costs him. And, although the money is not his, the boss, as a rule, is afraid of causing the displeasure of the business owner by asking for an increase or equalization of wages between his subordinates, since he, in turn, may be asked about his inability to keep his herd in a stall . Yes, the boss doesn’t need this.

We should not forget that there is also the good old principle of “divide and conquer”: competition is introduced between workers performing the same work through a noticeable difference in wages, the material basis for their possible unification against the bosses is eliminated (unifying office workers is generally a difficult matter, they They are terribly divided and tear each other apart). The one who receives more will almost always sabotage attempts to unite, because he is simply afraid of losing what he has. In addition to the difference in wages, there is a whole system of unspoken privileges, the encouragement of which, on the contrary, should seem undeserved to other employees (the opportunity to be late, take time off for personal matters, etc.). One former colleague told how his father, being a captain on a ship, would specifically single out one person from the crew, give him various concessions, give him bonuses - and all so that the crew would hate not the captain, but that same sailor. Moreover, the latter’s privileges must be precisely undeserved, and this should immediately be evident.

Since in my example, labor power was acquired by the capitalist at the cost that existed in the labor market in 2014, Mr. employer does not see the point in revising the terms of the concluded contract. A logical question: why does he need this? Yes, it seems unfair to the employee himself that, having worked in the organization for many years and doing similar work, he receives less than a newcomer who still needs to get up to speed. But you never know what seems to him there? The fact is that the new employee sold his labor power already at the cost of 2018 for the specified category of specialists, and, oddly enough, it has still increased since 2014 (although not in the same proportion as the cost of subsistence in general has increased) . From the point of view of the employer (and his representative - the boss), the terms of employment of one employee in no way affect the other, that's why in all the companies where I worked, the salary level was always the most closely guarded secret. Some may say that seeing such injustice, the old employee will begin to look for a new job and, in the end, quit; the company will have to look for a new, not yet proven person and, again, pay him more. But there are two points here: first, the said employee can look for a new job for months, if not years (since he wants to switch to more favorable conditions), and all this time he will perform his job duties at the old price; the second is an element of a long-term strategy on the part of the business owner: in no case should he bend under the slaves, since others will see this and, in turn, will begin to download their rights. And this is unacceptable, for the sake of this you can even incur temporary losses.

In a number of discussions, I have repeatedly come across the question: is there any added value generated by the work of a lawyer? In fact, this is a very interesting question, and I will analyze it separately and in detail, but for now I will write as a hypothesis: yes, it exists, since surplus value exists wherever there is wage labor, where the worker does not sell the product of his labor , and its workforce. The fact is that the growing needs of capital, on the one hand, the complication of its structure, and on the other, its coverage of all those spheres of production where previously there was still room for individual, petty-bourgeois activity, have decreased. Those professions that a hundred years ago were considered a niche for qualified, “self-employed” specialists working for themselves, for example, a doctor or a lawyer, have long been included in the chain of hired labor. In this regard, the profession of a lawyer has long ago, as a rule rather than an exception, become the profession of a hired worker, to whose remuneration all the provisions of political economy on the purchase and sale of labor power are applied.

Berezutsky Vladimir Nikolaevich(06.11.2012 at 16:01:08)

Good afternoon, Ilya. Article 37 of the Constitution of the Russian Federation proclaims the right to remuneration for work without any discrimination and not lower than the established minimum wage. This provision has found its further implementation in local legislation. Thus, Article 2 of the Labor Code of the Russian Federation enshrines the principle according to which each employee is guaranteed the right to timely and full payment of fair wages, ensuring a decent human existence for himself and his family, and not lower than the minimum wage established by federal law labor. This principle is manifested in establishing the employer’s obligation to provide employees with equal pay for work of equal value (Article 22 of the Labor Code of the Russian Federation). Therefore, every employer is obliged to establish a remuneration system, since the establishment of salaries cannot be arbitrary (Definition of the Russian Federation of November 11, 1997//Bulletin of the Supreme Court of the Russian Federation. 1998. No. 3). The remuneration system adopted by the enterprise must take into account the requirements of laws, other regulations, agreements, local regulations and employment contracts (Articles 129, 135 of the Labor Code of the Russian Federation). The staffing table is an internal, local regulatory act that determines official salaries in relation to each staff unit (position), indicating its rank, class, category, and qualifications. This can be very clearly seen in the example of the unified form T-3 “Staffing table”, approved by Resolution of the State Statistics Committee of Russia No. 1 of 01/05/2004 (this form is advisory; an enterprise can develop its own form of staffing table). The number of staff positions is determined at the discretion of the employer, while the employer has the right to assign several staff positions with the same name (for example, legal adviser - 3 units, senior legal adviser - 2 units, etc.). The requirements for occupying a position, the range of duties, powers and responsibilities of an employee are determined, as a rule, in the job description (an employment contract most often indicates only the name of the position or a general indication of the employee’s job function without specifying functional responsibilities). The job description must correspond to the name of the position in the employment contract and the name of the position in the local documents of the enterprise (including in the staffing table). Consequently, remuneration at an enterprise is regulated by a number of local regulations, which represent a coordinated and interconnected system that presupposes a uniform approach to determining the amount of wages for certain categories of workers. Therefore, in the staffing table, several salaries (tariffs) cannot be established for one position, since there are no systematically established criteria for the employer’s preference in remuneration for each employee for this position. However, in practice, indeed. A situation may arise when the staffing table approves several staff units for the same position with different salaries. This situation can be viewed in two ways. First, workers in similar positions may receive unequal pay for equal work based on the employer's subjective preferences. This can be regarded as discrimination against workers in wages. Numerous cases in this category indicate that the courts clearly rule in favor of employees, collecting the difference in salaries from the employer. Secondly, with different salaries for one position, the staffing table may have several job descriptions with different scope of responsibilities and level of qualification requirements. If we approach this situation formally and legally, then workers perform different amounts of work, and therefore it is impossible to establish the presence of discrimination in wages, since wages are remuneration for work depending on the qualifications of the employee, complexity, quantity, quality and conditions work performed... (Article 129 of the Labor Code of the Russian Federation). However, from the point of view of personnel records management, such an approach to determining the remuneration system is unlawful, since, in accordance with Art. 57 of the Labor Code of the Russian Federation, the name of the position (specialty, profession) indicating qualifications in accordance with the staffing table and the employee’s official salary are essential terms of the employment contract. Such a personnel policy at an enterprise can cause problems with employees regarding wage issues, and can also cause numerous claims from the labor inspectorate. Based on the above. I think you should change the approach established in your organization, according to which it is allowed to set different salaries for specialists of the same position.