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Russia may introduce criminal liability for delay wages for business owners. While planting only of Directors. But the harm to the employee from this decision may be more than good.
the arrears of wages do not fall
"Social tensions will be invoked against the current government," he described the bleak prospects of the Plenipotentiary of RF President in the Siberian Federal district Sergei Menyailo, describing the situation with wage arrears in SFO. In order not to lead to sin, Menyailo offered Rostruda to introduce at the legislative level, "more drastic measures" liable for unpaid wages, including, perhaps, criminal liability for business owners. The Deputy head of Rostrud Ivan Shklovets said in response that his office will support tougher if the relevant amendments to the law will be made.
3.39 billion rubles — this is the amount of debt of enterprises and organizations to the Russians on August 1, 2018. This is slightly less than last year: on August 1, 2017 debt was $ 3.46 billion rubles. However, by January 2018, the total wage arrears decreased to 2.5 billion, but then began to accumulate again. The dynamics this year is very alarming: only for July the debt has increased by almost 21%, or 586,3 mln. And the problem is chronic. Of 3.39 billion rubles of accumulated debts of 21.3% is salary, not paid for another in 2017, and 34.6 per cent for 2016 and earlier years. That is, again, more than half, 55.6 per cent, debt is salary over the past years. In reality, the figure may be much greater.
"In the above statistics do not take into account the fact that still quite a large percentage of workers receive wages gray, which deprives them of the opportunity to be protected in case of violation of labour legislation", — said the Director of the Department of legal support and control of the staffing company Manpower Group in Russia and the CIS Ivan Berdinskikh. Maybe it really is time to start to shake employers stronger?
For tougher punishment serves as the head of the Russian Investigative Committee Alexander Bastrykin, who in the beginning of this year proposed to increase the maximum penalty for non-payers of salaries with three to four years of imprisonment, but also to exonerate those who have repaid the debt.
According to statistics, in Russia is growing as the number of court cases on this issue, and the number of successful cases. But the point is not that it has become more irresponsible employers. On the contrary. "In connection with the growth of legal literacy of the population, the number of lawsuits and complaints to the labour Inspectorate and the Prosecutor's office of workers increases, — said the lawyer Dmitry Zatsarinsky. — Such treatment contribute to the fact that the majority of employers do not dare to violate the labor law, as it was in the late 1990-ies, and the overall decline in the number of cases of unpaid wages".
According to August 1, 2018, the debt on a salary in respect of a 50.4 per thousand people (though Rosstat these calculations do not take into account small business, as well as the above mentioned, the informal sector). However, according to some experts, a further tightening of legislation can lead to the opposite effect.
Not paid a salary? Five years in prison!
What is the responsibility of the Russian employers now? "The labor code provides that wages for the workers shall be paid not less frequently than twice a month. In case you do not comply, the law provides for liability for the employer, and it occurs from the first day of delay" — recalls Dmitry Zatsarinsky.
In case of delay by the employer in addition to salary, is obliged to pay compensation. Its size is constantly increased in recent years and today is 1/150 of the refinancing rate of the CBR on the amount of debt per every day of delay. "The employer is obliged to pay them regardless of his guilt, even if the salary will not be paid through the Bank's fault — for example, due to revocation of the license. These conclusions follow from part 2 of article 236 of the LC RF, — says the managing partner of the law firm "Borisov-Right" Grigory Borisov.
in Addition, there is administrative liability in the form of a fine in the amount from 1 thousand to 5 thousand rubles for officials and individual entrepreneurs, and from 30 thousand to 50 thousand rubles for legal persons in case of repeated violation the fines increase up to 20 thousand rubles for individual entrepreneurs and officials (the latter can be also applied disqualification for a period of 1-3 years) and up to 70 thousand rubles for legal entities.
"if the employer delays the payment of salaries for more than three months or a full salary over two months, there comes already a criminal liability," says Zatsarinsky. Here is what is written in the article 145.1 of the criminal code: "Partial failure more than 3 months wages, perfect for mercenary or other personal interest of the head of the organization, the employer — physical person, a head of a branch, representative office or other separate structural unit of the organization, — shall be punished by a fine of up to 120 000 RUB. (the following is a listing of other measures. — Approx. Banks.ru)... or by deprivation of liberty for up to one year."
the Full nonpayment over two months of salary under the same conditions faces a fine of up to 500 thousand roubles or imprisonment for the term up to three years. But if the delay in the salaries has resulted in serious consequences, the Manager can be imprisoned for up to five years. "Last year the employer from Samara received two years of imprisonment, two years of a ban on senior positions and a fine of 150 thousand rubles," — gives an example head of legal practice of the company "Prefinance" David Abrahamian.
However, the unpaid wages shall entail criminal liability only if the company has the money and the failure is due to greed or other personal interest the head of the organization, said Grigory Borisov. According to him, in Russia, the most common punishment for non-payment of wages is fine, but not "fit".
"you Should pay attention to the Statute of limitations, — said the head of the personnel Department "CTC Group" Natalya kadnikova. — In case of a dispute about unpaid wages, the employee may apply during the year, and in violation of the procedure of dismissal — within one month. Upon expiration, the employer is not responsible".
on the one hand, lawyers interviewed Banks.Roux noted that the Russian justice gradually strengthens the protection of workers. "Recently the employees had the right to appeal to an arbitration court with the statement for recognition of the employer's bankruptcy, provided that there is in force a court decision that proves that the salary and such other amounts not paid for more than three months and subject to recovery," says David Abrahamyan.
But in reality, workers are not always able to protect their rights. "The legislation today does not cope with the task. It often happens that ordinary workers are unable to make payments, and prosecution of the convicted don't even begin, — considers the lawyer Andrei Potemkin. — Most affected are newcomers who want to earn money in Russia. In fact, they have no rights without a special patent than entrepreneurs actively use it."
Quote Sin on par with murder
"surprisingly, not every country imposes criminal liability for salary nonpayment, — draws the attention of David Abrahamyan. — Russia in this plan and now one of the most strict legislations. Criminal liability is established in countries such as China, Poland, France, Germany, Austria, Thailand. Probably the strict liability established in the Criminal code of Germany up to ten years of imprisonment".
the Legal relationship between companies and workers in Europe was settled long ago. "The company has the ability to delay wages without any consequences a maximum of three days — specifies the managing Director of FINTECH-group Twino, which operates in five European countries, Svetlana Gaidukova. After this period, employees have the right to apply for redress, which is to 2% per day for wages. It is important to note that if the employee goes to court, the probability that he will win the process, close to 100%. The courts always take the position of the employee. With regard to the punishment of the owners, in 98% cases it is the large fines that can reach up to several million euros. Are subject to criminal liability only those owners who were seen in any fraudulent schemes. The main feature of Europeans is that they know very well their rights. In this sense, our citizens should learn".
It seems to be not a murder or a robbery, but the non-payment of wages is perceived as a serious crime not only in the legal field. Some Christian theologians hold the classification of sins according to their degree of severity. Someone divides by to whom they are directed (against God, against people or against yourself), someone who shares the sins on the natural (arising from our nature, such as adultery) and unnatural (breaking the laws of nature, such as murder). But in almost every classification there is the worst category of sins, glaring vengeance. This includes, for example, the murder of children or parents, and the retention of the employee the deserved payment for his work. In fact, it's not just theft, but also sometimes a threat to the survival of the whole family.
a company with unlimited liability
Administrative and criminal liability for nonpayment of wages in Russia, for only company executives, but not its owners. "In accordance with applicable law, the owner may be liable for nonpayment of wages only if at the same time he is an officer in the organization, — says Ivan Berdinskikh. Respectively, the maximum liability in this case would be analogous to the maximum liability specified for the employer".
in addition, to prosecute the owners of the organizations is possible only in case if the organization is unable to pay its debts, continues Berdinskikh. "But in fact will have to implement a number of long bureaucratic procedures to finally get the owner to answer for the debts to the employees," he warns.
the Introduction of criminal liability of company owners for non-payment of wages will give workers an extra tool, says David Abrahamyan. "It will serve as a lever of pressure on the employer and help the real way to not get paid on time wages — hopes lawyer. — The law also will stimulate the honest behavior of the persons controlling the debtor enterprise of the employer".
This initiative might work, because criminal liability under now does not give the desired result, says the head of the commercial legal practice of BMS Law Firm Denis Frolov. However, he has doubts about the effectiveness of the new method. "On the one hand, the owners of the organizations, indeed, in some cases, are responsible for non-payment of wages, — said Frolov. On the other hand, the introduction of such a rule may be grounds for unreasonable criminal prosecution of business owners for acts committed by the Directors."
Skeptical of the prospects to introduce criminal liability for owners looking lawyer Grigory Borisov. It is possible that this innovation can become a means of manipulation in the right hands. "Owners of many businesses are now a large number of individuals and legal entities. for Example, a society in which several participants with different shares, or joint-stock company, municipality or even the state itself, — says Borisov. — All this will create greater uncertainty of enforcement. And, consequently, may result in another "collision" first of all on small and medium business and its owners that will not contribute to the normal development of business activity in Russia".
is Not just unnecessary, and even harmful calls the introduction of criminal liability for owners, managing Director IK "Algo Capital" Michael Khans. "At first glance, this proposal looks very fair — he explains. It is in line with a General trend towards tighter state control over the economy. But in fact such measures would constitute a threat of punishment entrepreneurs if their business will fail."
Overlooked the obvious and well-known fact, continues Khans that the vast majority of new companies close within the first few years of existence. In addition, many operating companies conclude its successful long-term history of bankruptcy. "This is quite a common situation since the business is a risky activity with a substantial probability of loss, says Khan. — Following the logic of the Fes, it will be necessary to severely punish many bankrupt entrepreneurs up to measures such as imprisonment. The majority of private enterprises in Russia was in the form of limited liability companies. Initially, this form assumed that the company can lose only the money invested in the business. However, the progressive tightening of legislation leads to the fact that this legal form more rightly be called "society with unlimited liability"".
as a result of new legislation the first failed attempt of creating a business can permanently discourage the desire to create and develop own business, he said. "Besides, this is an additional incentive for care of small and even medium-sized businesses in the shadow, adds Khan. — Apparently widespread practice of using nominee Directors will be transferred to increase the share of the nominal owners of businesses. Overall, the new initiative of the Fes is clearly not conducive to improving the investment climate in the country."
Quote to Recover force
But then what would be the optimal solution to the problem? To protect property owners from unreasonable prosecution for crimes committed by Directors, Denis Frolov proposes to provide a mechanism to force the repayment of wage arrears by the decision of the labour inspection (this measure is also in the number of proposals), but without amending the criminal code.
"a Mechanism to force the repayment of wage arrears lies in the fact that the inspector first brings the employer the injunction on payments. If it doesn't, the decision on enforcement, says Frolov. — This decision is made in the form of an Executive document that is passed to the bailiffs. Accordingly, the next one is debt collection in a General manner".
There is another way. Longer and less real. "I am convinced that the arrears of wages increased due to the General state of the Russian economy, low investment returns and a large number of risks by regulatory authorities, and not the malice of the owners of the companies to cease to Finance them", — said Grigory Borisov. But the state of the economy of mass plantings of business owners just do not improve.
Milena BAKHVALOVA, Banki.ru
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