Frequently asked questions on the application of the provisions of the EAEU Labor Code

Frequently asked questions on the application of the provisions of the EAEU Labor Code

The movement of goods and vehicles from the territory of the Kaliningrad region to the territory of the Eurasian Economic Union (hereinafter referred to as the EAEU), through the territory of a state that is not a member of the EAEU, and vice versa, is carried out taking into account the specifics.
In accordance with subparagraph 5) paragraph 3 of Article 142 of the EAEU Labor Code, when transporting goods between customs authorities through the territories of states that are not members of the Union and (or) by sea, the customs procedure of customs transit is applied.

In accordance with paragraph 5 of Article 142 of the EAEU Labor Code, EAEU goods placed under the customs procedure of customs transit retain the status of EAEU goods.

In accordance with the Decision of the Board of the Eurasian Economic Commission dated November 7, 2017 No. 139 “On documents confirming the status of goods of the Eurasian Economic Union,” documents confirming the status of EAEU goods for placing such goods under the customs procedure of customs transit are:

a) bill of lading, invoice, document confirming the conclusion of a transport expedition agreement, invoice (invoice), specification, shipping (packing) list or other transport (transportation), commercial documents in which the entry “Goods of the Eurasian Economic Union” is entered, certified by the sender or declarant - in the case of transportation of goods from one part of the customs territory of the EAEU, which is not the territory of the free (special, exclusive) economic zone specified in paragraph 1 of Article 455 of the EAEU Labor Code, to another part of the customs territory of the EAEU through the territories of non-member states EAEU and (or) sea;

b) a declaration for goods, according to which the goods were released in a member state of the EAEU in accordance with the customs procedure for release for domestic consumption or the customs procedure for re-importation, a transit declaration confirming the import of EAEU goods into the territory of the free (special, exclusive) economic zone in in accordance with the customs procedure for customs transit, other documents used in accordance with the legislation of the EAEU member states to confirm the status of EAEU goods within the meaning of subparagraph 47 of paragraph 1 of Article 2 of the Code - in the case of transportation of goods from one part of the customs territory of the EAEU, which is a territory of free ( special, special) economic zone specified in paragraph 1 of Article 455 of the EAEU Labor Code, to another part of the customs territory of the EAEU through the territories of states that are not members of the EAEU, and (or) by sea.

When placing goods under the customs procedure of customs transit, the following standard documents are presented to the customs authority:

– transit declaration (its electronic copy);

– transport (shipping) documents (electronic copies);

– commercial documents available to the carrier for the goods transported (electronic copies).

The information that must be contained in the transit declaration is established by Article 107 of the EAEU Labor Code.

As a transit declaration, it is allowed to use transport (transportation), commercial and (or) other documents containing information necessary for the release of goods in accordance with the customs procedure for customs transit (clause 3 of Article 107 of the EAEU Labor Code).

In accordance with subparagraph 1) paragraph 5 of Article 302 of the EAEU Labor Code, EAEU goods transported by air or water transport without, respectively, landing the aircraft on the territory of a state that is not a member of the EAEU, or calling a water vessel into the ports of states that are not members of the EAEU (in particular, within the framework of ferry transportation carried out without entering the seaports of states that are not members of the EAEU, for example, through the road-railway-ferry terminal of the Seaport of Kaliningrad to the Seaport of Ust-Luga).

I also inform you that Article 304 of the EAEU Labor Code defines certain features of placing EAEU goods under the customs procedure of customs transit (depending on the type of transport used to transport goods, the category of goods being transported, conditions of transportation).

According to paragraph 4 of Article 304 of the EAEU Customs Code, customs operations related to placement under the customs procedure of customs transit are carried out at the place of departure from the customs territory of the EAEU or at the customs authority in the region of activity of which the sender of EAEU goods is located, taking into account paragraphs 5–7 of this article.

In accordance with paragraph 5 of Article 304 of the EAEU Customs Code, customs operations are carried out exclusively at the customs authority in the region of activity of which the sender of EAEU goods is located, in the following cases:

1) EAEU goods are transported by rail, with the exception of EAEU goods transported in mail, baggage (mail and luggage) cars traveling as part of passenger trains;

2) in the Member State in whose territory EAEU goods are placed under the customs procedure of customs transit, rates of export customs duties are established for such goods;

3) the conditions of transportation provide for the performance of cargo operations on the territories of states that are not members of the EAEU.

The Constitutional Court rejected one of the norms of the Labor Code and introduced a temporary procedure for paying severance pay

The Constitutional Court of the Russian Federation recognized the provision of the Labor Code of the Russian Federation, which does not provide equal rights to severance pay to different categories of workers, as inconsistent with the Basic Law. The case was considered in closed session without a hearing.

The reason for checking the constitutionality of Part 1 of Art. 178 of the Labor Code of the Russian Federation (severance pay) was a complaint from Saratov resident Maria Trofimova. A woman who was on maternity leave for up to one and a half years was dismissed from OSITs LLC on October 12, 2021 due to the liquidation of the organization. She was paid severance pay in the amount of average monthly earnings. According to Part 1 of Art. 178 of the Labor Code of the Russian Federation, upon termination of an employment contract in connection with the liquidation of an organization, the dismissed employee also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay). Trofimova was unable to find a job within two months, however, she also failed to make a demand to her former employer to maintain average earnings for the period of employment, since the liquidation procedure of the company was completed and information about its termination was entered into the Unified State Register of Legal Entities on November 16, 2021.

The Oktyabrsky District Court of Saratov refused to satisfy the woman’s administrative claim to recognize the record of the liquidation of “OSITS” as illegal due to the presence of outstanding debts to creditors. The court referred to the fact that at the time of approval of the liquidation balance sheet on November 8, the LLC did not have any creditor debt, and the plaintiff’s right to receive an average monthly salary for the period of employment arose no earlier than November 13. She was also denied the transfer of a cassation appeal for consideration at a court hearing by the cassation court.

The applicant considered that Part 1 of Art. 178 of the Labor Code of the Russian Federation violates its constitutional rights, since in conjunction with the provisions of the Civil Code of the Russian Federation and the law on state registration of legal entities that determine the procedure for liquidation of a legal entity, it allows, before the expiration of two months from the date of dismissal of the employee in connection with the liquidation of the employing organization, to complete the liquidation of this organization by entering it into the Unified State Register of Legal Entities persons with the corresponding registration and thereby deprives dismissed workers of the opportunity to receive a guarantee in the form of maintaining their average monthly earnings for the period of employment.

The Constitutional Court, having considered the case, noted that if by the time the right to receive the average monthly salary for the period of employment arises for an employee dismissed due to a reduction in the number or staff of the organization, his former employer continues his economic activity, this payment is guaranteed. Whereas by the time this right arises for an employee dismissed due to the liquidation of an organization, information about its termination may already be entered in the Unified State Register of Legal Entities.

The exercise by those dismissed of the right to maintain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal, cannot always be guaranteed for all workers without exception. Depending on the moment of dismissal, determined by the employer, taking into account both the purpose of the liquidation as a whole and the current tasks of its individual stages, this right may arise for the employee even after the liquidation of the legal entity, that is, when the entity to which the corresponding claim can be made no longer exists . This deprives such an employee of the opportunity to receive a payment guaranteed by law.

Thus, the implementation of the guarantee provided for in Part 1 of Art. 178 of the Labor Code of the Russian Federation, on equal terms to all employees dismissed on the basis of clause 1, part 1, art. 81 of the Labor Code of the Russian Federation is not provided by current legal regulation. This, according to the Constitutional Court, indicates a gap in the legal regulation of labor relations, which leads to a violation of rights and is not consistent with the constitutional principle of equality.

As a result, the Constitutional Court recognized Part 1 of Art. 178 of the Labor Code of the Russian Federation is contrary to the Constitution of the Russian Federation to the extent that the provision contained in it - due to the absence in the current legal regulation of a mechanism ensuring the provision on equal terms to all employees whose employment contract was terminated due to the liquidation of the organization, the guarantee provided for by this legal provision in the form of maintaining average earnings for the period of employment, but for no more than two months (including severance pay), deprives those of them who acquired the right to it after the termination of the employing organization from the opportunity to take advantage of this guarantee.

The Constitutional Court ordered the federal legislator to make changes to the current legal regulation aimed at establishing a legal mechanism that ensures the preservation of average earnings for the period of employment on an equal basis with other employees dismissed in connection with the liquidation of the organization, for those of them who acquire the right to provide this guarantee after the completion of the liquidation of the organization - employer.

Pending changes to legislation, provision of the guarantee provided for in Part 1 of Art. 178 of the Labor Code of the Russian Federation, employees dismissed in connection with the liquidation of the organization and who have acquired the right to maintain average earnings for the period of employment after its completion are provided at the choice of the employer or by increasing the amount of severance pay to the dismissed employee in the manner prescribed by Part 4 of Art. 178 of the Labor Code, or using civil law mechanisms that do not contradict the law.

The violated rights of the applicant are subject to protection and restoration on the basis of the legal regulation adopted in pursuance of this resolution. The resolution of the Constitutional Court is not subject to appeal and comes into force on the date of official publication.

Article 256 of the Labor Code of the Russian Federation. Parental leave (current version)

The right to a monthly child care allowance is granted not only to persons subject to compulsory social insurance in case of temporary disability and in connection with maternity, but also to other persons listed in Art. 13 of the Law on benefits for citizens with children caring for a child. In particular, mothers who are dismissed during pregnancy due to the liquidation of organizations, termination of activities by individuals as individual entrepreneurs, termination of powers by notaries engaged in private practice, and termination of the status of a lawyer, full-time students have the right to a monthly child care allowance education in educational institutions, other relatives who actually care for the child and are not subject to compulsory social insurance in case of temporary disability and in connection with maternity, if the mother and (or) father died, were declared dead, were deprived of parental rights, were limited in parental rights, are recognized as missing, incompetent (partially incompetent), for health reasons they cannot personally raise and support a child, are serving their sentences in institutions that carry out a sentence of imprisonment, etc. (paragraph 6 - 8, part 1, art. 13). In accordance with paragraph. 2 hours 1 tbsp. 15 of the Law on Benefits for Citizens with Children, payment to such persons of a monthly child care allowance is made in the minimum amount, which from 01/01/2014 is 2576.63 rubles. for caring for the first child and 5153.24 rubles. for caring for the second child and subsequent children.

Provision par. 2 hours 1 tbsp. 15 of the Law on Benefits for Citizens with Children, according to which a monthly child care allowance is paid in the minimum amount to the persons specified in paragraph. 6 - 8 hours 1 tbsp. 13 of this Law, including mothers dismissed during maternity leave in connection with the liquidation of organizations, was the subject of consideration by the Constitutional Court of the Russian Federation. In the Determination of the Constitutional Court of the Russian Federation dated January 27, 2011 N 179-O-P in the case of the complaint of citizen M.N. Syroegina. for violation of her constitutional rights, paragraph. 2 hours 1 tbsp. 15 of the Federal Law “On State Benefits for Citizens with Children” sets out the Court’s conclusion that the differentiation of the procedure for determining the amount of monthly child care benefits provided to mothers dismissed due to the liquidation of organizations during the period of maternity leave after the birth of a child, and mothers dismissed on the same grounds during the period of parental leave, leads to differences in the exercise of their right to social security that are not consistent with the constitutional principle of equality, and therefore cannot be considered reasonable and justified. In this regard, the legislator is instructed to eliminate unjustified differences in the amount of monthly child care benefits for mothers dismissed due to the liquidation of organizations during maternity leave after the birth of a child, and mothers dismissed on the same basis during parental leave for the child, establishing for them uniform rules for calculating the specified benefit. If maternity leave occurs while the mother is on maternity leave, she is given the right to choose one of two types of benefits paid during the periods of the corresponding leave.

Mothers entitled to maternity benefits, during the period after childbirth, have the right, from the day of birth of the child, to receive either a maternity benefit or a monthly child care benefit with credit for the previously paid maternity benefit if the amount of the benefit is for child care is higher than the amount of maternity benefits (Article 13 of the Law on Benefits for Citizens with Children).

In districts and localities in which regional coefficients are applied to wages in accordance with the established procedure, the minimum and maximum amounts of the specified benefit are determined taking into account these coefficients (Article 15 of the Law on Benefits for Citizens with Children).

The rules for the appointment and payment of a lump sum benefit at the birth of a child and a monthly child care benefit are established in Section. IV and VI Procedures and conditions for the appointment and payment of state benefits to citizens with children, approved. By Order of the Ministry of Health and Social Development of Russia dated December 23, 2009 N 1012n.

3. State authorities of the constituent entities of the Russian Federation, in accordance with the laws of the constituent entities of the Russian Federation, can increase the amounts of state benefits established by the specified Federal Law at the expense of the budgets of the constituent entities of the Russian Federation (Article 17.3 of the Law on Benefits for Citizens with Children).

4. Persons on parental leave to care for a child under three years of age, in accordance with Decree of the President of the Russian Federation of May 30, 1994 N 1110 “On the amount of compensation payments to certain categories of citizens,” are paid monetary compensation in the amount of 50 rubles.

The conditions for the appointment, payments and sources of financing of monthly compensation payments established by Decree of the President of the Russian Federation of May 30, 1994 N 1110 “On increasing the amount of compensation payments to certain categories of citizens” are determined by the Procedure for the appointment and payment of monthly compensation payments to certain categories of citizens, approved. Decree of the Government of the Russian Federation of November 3, 1994 N 1206 “On approval of the Procedure for the appointment and payment of monthly compensation payments to certain categories of citizens.”

Such monthly compensation payments are assigned and paid to those on parental leave until the child reaches the age of three: mothers (father, adoptive parent, guardian, grandmother, grandfather, other relative actually caring for the child) who are in an employment relationship with organizations regardless of their organizational and legal forms; mothers undergoing military service under contract, serving as privates and commanding officers in internal affairs bodies; mothers undergoing military service under a contract, and mothers from civilian personnel of military formations of the Russian Federation located on the territory of foreign states, in cases provided for by international treaties of the Russian Federation; unemployed women dismissed due to the liquidation of an organization, if they were on maternity leave at the time of dismissal and do not receive unemployment benefits.

For persons working, serving, or living in areas where regional wage coefficients are established, the amount of monthly compensation payments is determined using these coefficients, regardless of the place of actual stay of the recipient during the period of parental leave.

5. For certain categories of persons, the law establishes a higher amount of child care benefits. Thus, persons exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant, permanently residing (working) in the territory of a residence zone with the right to resettlement, in the territory of a residence zone with a preferential socio-economic status, in a resettlement zone before their resettlement to other areas, are guaranteed a monthly double child care allowance until the child reaches the age of three (Clause 7, Part 1, Article 18, Part 1, Article 19, Article 20 of the Chernobyl Law). Moreover, in the case of caring for two or more children, the amount of the monthly child care benefit is summed up. The summed amount of this benefit in the case of caring for two or more children cannot exceed 100% of the earnings (income) from which this benefit was calculated, but cannot be lower than the summed double minimum amount established by the Federal Law “On State Benefits for Citizens with Children.” monthly child care allowance.

This benefit also applies to citizens living in settlements exposed to radioactive contamination as a result of the accident in 1957 at the Mayak production association and the discharge of radioactive waste into the Techa River, where the average annual effective radiation dose is currently over 1 mSv (0. 1 rem) (additionally above the level of natural background radiation for a given area) (clause 4 of article 1 and article 7 of the Law on the accident at PA Mayak).

The procedure for assigning and paying this benefit is determined by the Rules for the payment of a monthly child care benefit in double the amount until the child reaches the age of three to citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant, approved. Decree of the Government of the Russian Federation dated July 16, 2005 N 439, and clarified by Order of the Ministry of Health and Social Development of Russia dated December 1, 2008 N 692n “On approval of the clarification on the procedure for assigning and paying a double monthly child care allowance until the child reaches the age of three years.”

Collective agreements (agreements) may establish higher monthly compensation payments to working women and other persons on maternity leave to care for a child under three years of age.

6. At the request of a woman (the child’s father, grandmother, grandfather, other relative or guardian), while on maternity leave, she can work part-time or at home. For part-time work, see comment. to Art. 93.

Since Part 3 of the commented article does not indicate that part-time work is possible only at the main place of work, it should be assumed that under the specified conditions it is possible to work part-time in another organization.

Persons working part-time or at home while on parental leave until the child reaches the age of one and a half years retain the right to receive a monthly benefit for the period of this leave.

If, during the period of maternity leave, a woman becomes entitled to paid study leave, she can take advantage of it by interrupting her maternity leave. The interrupted vacation can be taken back. However, it is not extended due to study leave.

7. For the period of leave to care for a child under three years of age, persons providing such care retain their place of work (position).

By Decree of the President of the Russian Federation dated May 7, 2012 N 606 “On measures to implement the demographic policy of the Russian Federation,” the Government of the Russian Federation and executive authorities of the constituent entities of the Russian Federation are ordered to take measures aimed at creating conditions for women to combine the responsibilities of raising children with employment, as well as organization of vocational training (retraining) for women on maternity leave before the child reaches the age of three.

In accordance with the Employment Law, state authorities of the constituent entities of the Russian Federation have the right to organize vocational training and additional vocational education for women during the period of parental leave until the child reaches the age of three years (clause 3 of Article 7.1-1). Vocational training and additional vocational education of women during the period of parental leave until the child reaches the age of three years are carried out in the direction of the employment service authorities, subject to the application of women of this category to these authorities. The procedure and conditions for the employment service to send women during the period of maternity leave until the child reaches the age of three years to undergo vocational training or receive additional vocational education are established by the state authorities of the constituent entities of the Russian Federation (clause 1.1 of Article 23).

Order of the Ministry of Labor of Russia dated February 18, 2013 N 64 approved Methodological recommendations for the development by executive authorities of the constituent entities of the Russian Federation of measures aimed at creating conditions for women to combine the responsibilities of raising children with employment, as well as for organizing vocational training (retraining) for women in parental leave until the child reaches the age of three.

8. The time of parental leave until the child reaches three years of age is not included in the length of service giving the right to annual paid leave (Article 121 of the Labor Code).