What is a Collective Liability Agreement? What do you need to conclude

Application No. 4
to the decision of the Ministry
labor and social development
Russian Federation
dated December 31, 2002 No. 85

Standard form of the contract
about the full collective (brigade) material
responsibility

(Full Name)

or his deputy acting on the basis of

(Full Name)

On the one hand, and members of the team (team)

(charter, regulations, powers of attorney)

(name of workshop, department, department, farm, site, other division)

hereinafter referred to as the “Team (team)”, represented by the head of the Team (team leader)

(last name, first name, patronymic; position held)

have entered into this Agreement as follows.

I. Subject of the Agreement

The collective (team) assumes collective (team) financial responsibility for failure to ensure the safety of property entrusted to it for

(name of the type of work)

as well as for damage incurred by the Employer as a result of compensation for damage to other persons, and the Employer undertakes to create the conditions for the Team (team) necessary for the proper fulfillment of the obligations assumed under this Agreement.

II. General provisions

1. The decision of the Employer to establish full collective (team) liability is formalized by order (instruction) of the Employer and announced to the Collective (team).

The order (instruction) of the Employer on the establishment of full collective (team) liability is attached to this Agreement.

2. The staffing of the newly created Team (team) is carried out on the basis of the principle of voluntariness. When new employees are included in the Team (team), the opinion of the Team (team) is taken into account.

3. The leadership of the Collective (team) is assigned to the head of the Collective (team leader).

The head of the Team (foreman) is appointed by order (instruction) of the Employer. At the same time, the opinion of the Collective (team) is taken into account.

In the temporary absence of the head of the Team (team leader), his duties are assigned by the Employer to one of the members of the Team (team).

4. In the event of a change in the head of the Team (foreman) or in the event of leaving the Team (team) more than 50 percent of its original composition, this Agreement must be renegotiated.

5. This Agreement shall not be renewed upon leaving the Collective (team) of individual employees or when new employees are admitted to the Collective (team). In these cases, the date of his departure is indicated against the signature of the retired member of the Team (team), and the newly hired employee signs the Agreement and indicates the date of joining the Team (team).

III. Rights and obligations of the Collective (team) and the Employer

6. The team (team) has the right:

a) participate in the acceptance of the entrusted property and exercise mutual control over the work of storage, processing, sale (release), transportation or use in the production process of the entrusted property;

b) take part in the inventory, audit, other verification of the safety of the state of the property entrusted to the Collective (brigade);

c) get acquainted with reports on the movement and balances of the property entrusted to the Collective (brigade);

d) in necessary cases, require the Employer to conduct an inventory of the property entrusted to the Team (team);

e) declare to the Employer about the withdrawal of members of the Collective (team), including the head of the Collective (team leader), who, in their opinion, cannot ensure the safety of the property entrusted to the Collective (team).

7. The team (team) is obliged:

a) take care of the property entrusted to the Team (team) and take measures to prevent damage;

b) in accordance with the established procedure, keep records, draw up and timely submit reports on the movement and balances of the property entrusted to the Collective (brigade);

c) promptly notify the Employer of all circumstances that threaten the safety of the property entrusted to the Team (team).

8. The employer is obliged:

a) create the conditions necessary for the Collective (team) to ensure the complete safety of the property entrusted to the Collective (team);

b) take timely measures to identify and eliminate the reasons that prevent the Collective (team) from ensuring the safety of the entrusted property, identify specific persons guilty of causing damage, and bring them to justice established by law;

c) to acquaint the Team (team) with the current legislation on the liability of employees for damage caused to the employer, as well as with other regulatory legal acts (including local ones) on the procedure for storage, processing, sale (vacation), transportation, use in the process of production and implementation of other operations with the property transferred to him;

d) provide the Team (team) with the conditions necessary for timely accounting and reporting on the movement and balances of the property entrusted to it;

e) consider the question of the validity of the requirement of the Collective (team) to conduct an inventory of the property entrusted to it;

f) consider in the presence of the employee the challenge declared to him and, if the challenge is justified, take measures to remove him from the composition of the Team (team), decide on his further work in accordance with applicable law;

g) to consider reports of the Collective (team) about circumstances that threaten the safety of the property entrusted to him, and take measures to eliminate these circumstances.

IV. Accounting and reporting procedures

9. Acceptance of property, keeping records and reporting on the movement of property is carried out in accordance with the established procedure by the head of the Collective (foreman).

10. Scheduled inventories of the property entrusted to the Collective (team) are carried out within the time limits established by the current rules.

Unscheduled inventories are carried out when the head of the Collective (team leader) changes, when more than 50 percent of its members leave the Collective (team), and also at the request of one or more members of the Collective (team).

11. Reports on the movement and balances of the property entrusted to the Collective (team) are signed by the head of the Collective (foreman) and, in order of priority, by one of the members of the Collective (team).

V. Indemnification

12. The basis for bringing the members of the Collective (team) to liability is the direct actual damage directly caused by the Collective (team) to the Employer, as well as the damage incurred by the Employer as a result of compensation for damage to other persons.

13. The Collective (team) and/or a member of the Collective (team) shall be released from material liability if it is established that the damage was caused through no fault of the members (member) of the Collective (team).

14. Determination of the amount of damage caused by the Collective (team) to the Employer, as well as the procedure for its compensation are regulated by the current legislation.

15. This Agreement enters into force from and is valid for the entire period

the work of the Collective (team) with the property entrusted to him at the Employer.

16. This Agreement is drawn up in two copies of equal legal force, one of which is with the Employer, and the second - with the head of the Team (foreman).

17. Changing the terms of this Agreement, supplementing, terminating or terminating it are carried out by written agreement of the parties, which is an integral part of this Agreement.

They wanted to conclude an agreement with the team on full property liability. The team consists of crane operators, slingers, foreman, senior slinger. Our enterprise is engaged in repair of a pipe. The duties of slingers and crane operators include loading and unloading pipes on machines for the needs of the Customer. The crane operators and the foreman refuse to sign the contract, arguing that they are not responsible for the pipe. How can we legally force them to sign the contract and what procedure do we need to follow?

Answer

It is impossible to conclude an agreement on liability with a crane driver, since such a position is not in the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual liability for the lack of entrusted property. In relation to the master, you can conclude an agreement on liability if he is a master of construction and installation works (which does not follow from the question). From the conditions of the question it follows that the employees will perform the duties of loaders (loading and unloading). And with loaders (and in relation to their duties) it is impossible to conclude an agreement on liability, since these works and positions are not included in the List.

Agreements on full liability can be signed only with those employees and for the performance of such types of work that are provided for in the List of positions and works. Such explanations are given in the Letter of Rostrud dated October 19, 2006 No. 1746-6-1 .

From the Ruling of the Supreme Court of the Russian Federation of November 19, 2009 No. 18-В09-72, it follows: the legislation provides for specific requirements, under which the employer can conclude a written agreement with an individual employee on full liability, a list of positions and works in the performance of which such agreements can be concluded , mutual rights and obligations of the employee and the employer to ensure the safety of material assets transferred to him under the report. Failure to comply with the requirements of the law on the procedure and conditions for concluding and executing an agreement on full individual liability may serve as a basis for releasing an employee from the obligation to compensate for the damage caused through his fault in full, exceeding his average monthly earnings. The inconsistency of the position and the work performed with those specified in the List indicates that an agreement on full liability cannot be concluded.

The list is not subject to extended interpretation. In addition, in paragraph 3.7 of the Order of the Ministry of Commerce of the USSR dated 19.08.1982 No. 169 of the Instruction on the procedure for applying in state trade the legislation governing the liability of workers and employees for damage caused to an enterprise, institution, organization (valid to the extent that it does not contradict the Labor Code of the Russian Federation) It is expressly stated that the composition of teams with collective financial responsibility cannot include: junior service personnel, loaders, auxiliary (transport) workers, watchmen.

The rationale for this position is in the materials of the "Personnel System".

« With which employees can I conclude an agreement on full liability

Agreements on full liability can be concluded not with all employees, but only with those who:

• directly serve or use money (goods) or other property belonging to the organization;
• have reached the age of 18;
• their position or work is among those that allow the conclusion of such an agreement.

The list of positions and works with which it is possible to conclude written agreements on full liability is approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

It is unlawful to conclude agreements on full liability with employees whose positions are not provided for by the List approved by Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85. The courts take a similar position (see, for example, the appeal rulings of the Irkutsk Regional Court dated July 24, 2013 No. 33-5868/13
and the Supreme Court of the Republic of Khakassia dated July 24, 2013 No. 33-1736/2013).

How to introduce collective (team) responsibility

Collective (team) liability can be introduced in the following cases:

• if employees perform any work together;
• if it is difficult to distinguish between the responsibility of each of them for the safety of property (for example, several employees (security guards, drivers) are responsible for the storage or transportation of goods);

if the relevant works are included in the list of works for which collective responsibility can be introduced (Appendix 3 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85). This procedure is specified in part 1 of article 245 of the Labor Code of the Russian Federation.

Brigade responsibility can be introduced, for example, for employees involved in delivery (courier services), for sellers, movers, storekeepers, etc. It is often introduced by organizations that repair household appliances, provide laundry, dry cleaning services, transport and deliver goods.

To introduce brigade responsibility, you need to:

• issue an order establishing brigade responsibility and familiarize employees with the new procedure;
• conclude an agreement on collective liability with the relevant group of employees.

The basis is Article 245 of the Labor Code of the Russian Federation.

Issue the order of the head and familiarize the employees with it under the signature. Let each employee write on the order “I am familiar with the order” and put a signature. In the order, the leadership of the team (team) is assigned to the head of the team (team). In this case, the leader does not have to be the head of the department. When appointing a manager, the opinion of all employees of the team should be taken into account (clause 3 of Appendix No. 4 to the Decree of the Ministry of Labor of Russia of December 31, 2002 No. 85). It should be noted that the head of the team (team) only manages the team, and responsibility for damage caused to the employer lies with each member of the team (Article 245 of the Labor Code of the Russian Federation). The standard form of the agreement on collective responsibility was approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

Professional help system for lawyers, where you will find the answer to any, even the most complex question.

The sample collective liability agreement 2019, which you will find in the article, will help protect the interests of the organization.

When is a collective liability agreement needed?

In accordance with Article 244 of the Labor Code of the Russian Federation, an employer may conclude liability agreements with employees in the event that it is impossible to distinguish between the responsibility of each employee for causing harm.

Agreements on full collective (team) liability can only be concluded with those employees who perform work included in the List of positions and works approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

Such an agreement can be concluded, for example, with a team of warehouse workers, since they perform the work provided for by the specified List, namely: acceptance for storage, processing (manufacturing), storage, accounting, release (issuance) of material assets. However, remember that it is impossible to prepare a sample agreement on the collective liability of the seller, in this case you will need an agreement on individual liability.

Sample agreement on full collective liability

Decree of the Ministry of Labor dated December 31, 2002 No. 85 provides for a standard form of a liability agreement. You can use it to prepare, for example, a sample collective liability agreement for a store.

With whom you can enter into an agreement

Order of the USSR Ministry of Trade of August 19, 1982 No. 169 approved "Instructions on the procedure for the application in state trade of legislation regulating the liability of workers and employees for damage caused to an enterprise, institution, organization." According to clause 3.7 of the Instructions, agreements on full collective responsibility cannot be concluded with the following persons:

• employees of a small retail network (delivery and peddling trade, trade in tents, kiosks, etc., including those located separately on the trading floor), as well as with other persons with whom an individual agreement on full liability has been concluded;
• persons employed on a part-time or part-time working week, if they, together with other employees, do not dispose of commodity values ​​(these persons may be sent to independent work areas with full individual responsibility);
• workers of auxiliary professions (ironers, cutters, etc.);
• junior service personnel, loaders, auxiliary (transport) workers, watchmen;
• persons under the age of 18;
• trainees of educational institutions, students studying directly at trade enterprises;
• graduates of higher and secondary special educational institutions and institutions of vocational education, as well as persons who have been trained at the workplace, during the first year of work, who do not have experience in working with material values. These employees are prohibited from entrusting independent work on servicing material assets outside the enterprise (delivery and peddling trade, trade in tents, stalls, etc.).

The instructions continue to this day, but the order in which they are applied has not been determined. In this regard, this document can be used as a recommendation, since the obligatory nature of its norms is not established by either the Labor Code of the Russian Federation or other federal laws.

However, this normative act contains important clarifications that are not reflected in the current legislation. So, for example, according to clause 2.6 of the Instructions, the brigade's liability for valuables located on the trading floor (in production) and in the utility room can be established if:

• the utility room is used by only one group of workers, all of them have free access to material assets located both in the trading floor and in the utility room, and participate in all trade, warehouse and production operations;
• all commodity operations of production, auxiliary warehouse, commodity-money operations of the trading floor constitute a single process of work and are controlled by all its members.

The employer can use these provisions when organizing the safety of property entrusted to the team.

How to conclude an agreement on collective liability

The decision of the employer to establish full collective (team) liability is formalized by order or instruction. Members of the team must be familiarized with the document under the signature.

Since there is no unified form of the order, the employer has the right to develop it independently. The order should contain the following information:

• on the formation of a team (team);
• on the appointment of its head;
• on the conclusion of an agreement on full collective liability.

A sample of filling out an order on the establishment of full collective liability

The order must be attached to the concluded agreement on full collective (brigade) liability (paragraph 2, clause 1 of Appendix No. 4 of the Decree of the Ministry of Labor of Russia of December 31, 2002 No. 85).

The procedure for recovering damages under a collective liability agreement

In case of detection of damage subject to compensation by the brigade, the employer is obliged:

1. Document the amount of damage.
2. Ask all employees of the team for explanations on the fact of the damage.
3. Establish a causal relationship between damage and the performance/non-performance of job duties by employees.

The damage to be compensated by the team is distributed among the members of the team in proportion to the monthly tariff rate (official salary) and the time actually worked for the period from the last inventory to the day the damage was discovered (clause 7.3 of the Instructions). Judicial practice recognizes this method of calculating damages as logical and lawful (clause 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52, the Moscow City Court of June 29, 2010 in case No. 33-16601).

It should be borne in mind that, according to Part 4 of Art. 245 of the Labor Code of the Russian Federation, the degree of guilt of each member of the team is determined by agreement between all members of the team and the employer. Therefore, the employer must draw up an agreement with the employees, which will indicate the amount of compensation for each of them.

The very amount of damage payable by a particular employee, in accordance with clause 7.3 of the Instructions, can be determined by the following formula:

R 1 \u003d C x Z 1 / (Z 1 + Z 2 + ... + Z n),

• P1 - the amount of compensation for damage by the first member of the brigade;
• C is the amount of damage;
• З1, З2, З3, ... Зn - the salary of the team members for the inter-inventory period according to salaries, taking into account the hours worked.

When calculating the amount of compensation for damage, wages do not include bonuses received by members of the team, as well as severance pay, compensation and other payments, which, according to the law, are not levied.

Accordingly, after determining the amount of damages, a written agreement is drawn up on the amount and procedure for its repayment. The agreement is drawn up by all members of the team and signed by them and the employer.

If the damage is recovered in court, the degree of guilt of each member (team) is determined by the court (part 4 of article 245 of the Labor Code of the Russian Federation).

The current legislation does not provide for the joint and several liability of employees with whom an agreement on collective liability has been concluded in case of harm to the employer.

One of the most complex institutions of labor law is the collective liability of employees to the employer. The path of an employer who wants to bring their own employees to collective liability is tortuous and thorny, and this is not a metaphor, but the realities of both economic and judicial practice. This article is devoted to the failures of employers in the application of collective liability, which are reflected in judicial practice, and their analysis.

Features of collective liability

To begin with, let's briefly consider the features of collective liability (CMO), which distinguish it from individual liability. It is they that give rise to difficulties and errors in the application of CMO.

The first characteristic feature of the CMO is its collectivity. In other words, employees have a common access to inventory items (inventory and materials), and it is not possible to differentiate access of each of them to inventory in business processes. These values ​​are served jointly by employees (part 1 of article 245 of the Labor Code of the Russian Federation).

The second essential feature is the plurality of persons on the part of employees in the contract for a complete CMO (part 2 of article 245 of the Labor Code of the Russian Federation). The contract is one, but its parties are all or part of the employees of the team. All of them must participate in its signing.

The third feature of the KMO is the special role of the degree of guilt of each member of the team, the procedure for determining and proving it (part 4 of article 245 of the Labor Code of the Russian Federation).

The fourth is related to proving the amount of damage caused to the employer: it is necessary to take into account the salary of each member of the team, the degree of his guilt, the time he worked in the team from the day of the last inventory to the day the damage was discovered (paragraph 2, clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/16/2006 N 52 "On the application by the courts of legislation governing the liability of employees for damage caused to the employer", hereinafter - Resolution N 52).

And the fifth feature is the possibility of reducing the penalty from a particular member of the team, depending on many factors (paragraphs 3-5, clause 16 of Resolution No. 52).

Mistakes of employers in attracting employees to CMO

In order to analyze the mistakes and failures of employers in litigation, we will first look at what circumstances are important when resolving the issue of the legality of involving an employee in CMO.

Let's call the first category of evidence "general". These circumstances must be proved both in the case of individual and in the case of collective liability (clause 4 of Resolution No. 52).

These include:

- the absence of circumstances excluding the liability of the employee;

– compliance with the rules for concluding an agreement on full liability;

- the presence of direct actual damage and its size;

- the fault of the employee in causing damage;

— a causal relationship between the behavior of the worker and the resulting damage.

These include:

- compliance with the rules for establishing collective liability;

- the composition of the members of the team against whom the claim has been brought (whether it has been brought against all members);

- individual responsibility of each member of the team, taking into account his guilt, wages, time of work in the team.

Conclusion of an agreement on full liability

Sometimes, instead of an agreement on full collective liability, an employer concludes agreements on individual liability with several employees. At the same time, access to goods and materials is carried out by employees collectively, and it is impossible to distinguish it.

Arbitrage practice. This situation is described in the appeal ruling of the IC in civil cases of the Orenburg Regional Court dated January 10, 2013 in case No. 33-83/2013. Two sellers worked in the store in shifts, while inventory was not carried out at the end of the shifts, respectively, the sellers accessed the inventory jointly, and it was necessary to conclude an agreement with them not on individual, but on collective liability. In this case, the requirement of Part 1 of Art. 245 of the Labor Code of the Russian Federation. As a result, the employer lost the case.

A similar case is set out in the appeal ruling of the IC in civil cases of the Irkutsk Regional Court dated May 11, 2012 in case No. 33-3962/12.

Sometimes, when hiring an employee as part of a team, they forget to sign an agreement on CMO with him.

Arbitrage practice. The appeal ruling of the Supreme Court of the Republic of Karelia dated September 18, 2012 in case No. 33-2788/2012 states that the employee was hired twice by the same organization. The first time they signed an agreement on the CMO with her, but the second time they forgot. Accordingly, this served as one of the main arguments for dismissing the employer's claim for damages caused by the employee.

There are also cases when the contract is signed only with the head of the team, and the rest of the employees are only familiar with it.

Arbitrage practice. The appeal ruling of the IC in civil cases of the Yaroslavl Regional Court in case N 33-5164 / 2012 describes exactly this case: the CMO agreement was signed by the head of the team, there are no signatures of the other members of the team in the contract. And they are present only in the familiarization sheet with the contract. And the court did not consider this circumstance to be an appropriate way to conclude an agreement on CMO. The damage was not recovered even from that employee - the head of the team, who signed the contract, and not the familiarization sheet. There is no plurality of persons on the part of employees in this case, part 2 of Art. 245 of the Labor Code of the Russian Federation.

Failure to ensure proper conditions for accounting and preservation of goods and materials

In some cases (which the employer "forgets about"), the employee can either be completely exempted from liability, or the amount of compensation can be reduced. In particular, if the employer has not provided the proper conditions for working with goods and materials (Article 239 of the Labor Code of the Russian Federation).

Arbitrage practice. In the appeal ruling of the Moscow City Court dated March 18, 2013 in case No. 11-5867, it was stated that theft from the store occurred regularly, the employer was aware of this, but he did not take specific measures to strengthen the security of the store. The number of staff and the volume of the store also objectively did not allow employees to fully exercise control over goods and materials. Based on this, the court reduced the amount of damage recovered from employees by applying Art. 250 of the Labor Code of the Russian Federation, clause 16 of Resolution No. 52.

Arbitrage practice. In the ruling of the IC in civil cases of the Rostov Regional Court dated May 31, 2012 in case N 33-6044 / 2012, much attention is paid to the following circumstances: the employer did not create the proper conditions for employees to ensure the accounting of the movement of goods and materials, the goods were not checked by weight and volume upon receipt. Accounting was conducted with significant violations, as established by the accounting expertise in the case. Under such circumstances, the employer failed to recover the damage that either was or was not caused to him.

Non-observance of the procedure for determining material damage, incorrect determination of its amount

The courts pay great attention to the procedure for conducting an inventory, as a result of which employees are brought to collective liability. The procedure for conducting an inventory is regulated by the Guidelines for the inventory of property and financial obligations, approved by order of the Ministry of Finance of Russia dated June 13, 1995, No. 49 (hereinafter - the Guidelines).

Arbitrage practice. In the ruling of the Moscow Regional Court dated May 24, 2011 in case No. 33-11842, violations of the inventory procedure were investigated, in connection with which it was impossible to determine the amount of damage caused and, accordingly, it became impossible to recover it from employees.

Arbitrage practice. A similar position is set out in the ruling of the Moscow Regional Court dated November 30, 2010 in case No. 33-22915/2010. The court drew attention to the violation of the procedure for conducting an inventory - financially responsible persons did not participate in it, they were not familiar with its results. Violated by the employer and Art. 247 of the Labor Code of the Russian Federation: no evidence was provided for demanding explanations from employees.

It should be noted that even if an employee voluntarily agrees to compensation for the damage imputed to him and partially compensates for the damage from his salary, this is not a reason to violate the procedure for detecting damage.

Arbitrage practice. A similar position is set out in the appeal ruling of the Investigative Committee in civil cases of the Vologda Regional Court dated September 12, 2012 in case N 33-3764/2012. The court drew attention to the violation of the Methodological Instructions and Art. 247 of the Labor Code of the Russian Federation, concluding that "only if the above procedure is strictly observed, the employer has the right to recover the damage caused from the employee."

Arbitrage practice. The ruling of the Moscow Regional Court dated September 21, 2010 in case No. 33-18292 illustrates an interesting situation when, when establishing the amount of damage, only the shortage of goods and materials was taken into account, but their excess was not taken into account. Accordingly, the plaintiff employer incorrectly calculated the amount of damage, violating Art. 238 of the Labor Code of the Russian Federation: it is necessary to take into account the actual material damage. And the real damage is the shortage minus the surplus of goods and materials. Therefore, the court refused the employer.

Incorrect determination of the degree of individual responsibility of team members

When determining the degree of guilt of each of the employees, the employer does not always take into account the circumstances that the courts subsequently pay attention to.

Arbitrage practice. In the ruling of the Investigative Committee on Civil Cases of the Primorsky Regional Court dated June 27, 2012 in case No. 33-5651, two sellers are referred to, against whom a claim was brought to recover damages from them. They worked as part of a team of three, but only two were sued. The third seller retired earlier, inventory after her dismissal was not carried out. The damage arose, among other things, due to the concealment of a shortage by financially responsible persons during the previous inventory, in which a third employee who had previously quit was involved. On the basis of these facts, the court reduced the amount of damages for two defendants to 40% each, referring to paragraph 14 of Resolution No. 52 and Art. 250 of the Labor Code of the Russian Federation.

We also note that in the above judicial act, the court also points out that it is impossible to recover damages from the members of the collective jointly and severally, since the liability of the members of the collective is not joint, but shared, that is, a specific share of each member of the team must be determined. Oddly enough, this mistake is made not only by employers, but also by the courts themselves. The higher courts corrected this error.

Arbitrage practice. The Presidium of the Moscow City Court, by its decision of 07.09.2012 in case No. 44g-126/12, canceled the decisions of the previous instances that had recovered from the team in favor of the plaintiff the amount of damage jointly and severally. And he emphasized that it is impossible to apply such an institution of civil law as joint and several liability to relations in the field of labor law, stating non-compliance with Part 4 of Art. 245 of the Labor Code of the Russian Federation, clause 14 of Resolution No. 52.

The courts also actively use the possibility of reducing the liability of a member of the team, depending on his life and material circumstances, time of work in the team, referring to Art. 250 of the Labor Code of the Russian Federation and clause 16 of Resolution No. 52, containing an open list of such circumstances. In particular, it states: "... when assessing the financial situation of an employee, one should take into account his property status (the amount of earnings, other basic and additional income), his marital status (the number of family members, the presence of dependents, deductions from executive documents), etc. P.". This is confirmed by the following examples of judicial practice.

Arbitrage practice. In the appeal ruling of the Moscow City Court dated July 10, 2012 in case No. 11-19325 of one of the workers, the amount of damages claimed was reduced due to the fact that she was a student, lost her breadwinner, worked in a team for less than a month before the date of the inventory and identification of shortages.

In the ruling of the Moscow City Court dated December 24, 2010 in case No. 33-38370, the amount of damage due from them was reduced by more than two times to two members of the team, since one was a pensioner suffering from a number of chronic diseases, and the other was pregnant and was also limited in their means.

In the appeal ruling of the Investigative Committee for Civil Cases of the Belgorod Regional Court dated October 2, 2012 in case No. 33-2865 of one of the workers, the amount of damage was reduced due to her having a small child and low income.

Much to the regret of the employer, in the same clause 16 of Decree N 52 it is noted that a reduction in the amount of the penalty from one or more members of the team (team) cannot serve as a basis for a corresponding increase in the amount of the penalty from other members of the team (team). The only plus: this paragraph states that the court does not have the right to completely release the employee from liability.

Thus, even if the employer has collected all the necessary evidence to bring employees to liability, there may be pregnant women, pensioners, large families, alimony payers, etc. among them. And this will be the basis for reducing the recoverable amounts of damage.

What to do in order to avoid failures in court cases with financially responsible members of the team? Let's consider this question in more detail.

First, it is necessary to take measures from the very beginning, even at the stage of concluding an agreement on the liability of employees. It is necessary to correctly determine the type of liability depending on how many employees and how they access the inventory. If there are signs specified in Part 1 of Art. 245 of the Labor Code of the Russian Federation, it is imperative to establish collective, and not individual liability.

Secondly, the KMO agreement must be signed with all members of the team. Please note: familiarization with the text of the contract under a personal signature does not mean its signing by the employee. In this case, the contract will not be valid.

Thirdly, the employer should properly ensure the possibility of storing and accounting for goods and materials. If this does not happen, these omissions will serve as the basis for either dismissal of the claim or reduction of damages. It is objectively difficult, for example, to expect from two or three employees located in a large sales area that they will be able to simultaneously sell goods and monitor their safety with a significant flow of buyers.

Fourthly, it is necessary to carefully observe the procedure for conducting inventories and the norms of Art. 247 of the Labor Code of the Russian Federation: strictly follow the Methodological Instructions, request explanations, record a refusal to give explanations, etc. It is these actions that allow collecting the bulk of the evidence that is decisive for establishing the fact and amount of damage.

Fifthly, it is necessary to pay attention to the distribution of damage between employees, take into account the members of the team who left by the time of the inventory, the working hours, the salary of each employee, the conscientiousness of their performance of their duties, the presence of extenuating circumstances. And, of course, it makes no sense to demand joint and several compensation for damage from employees.

Opinion

Full brigade liability

A rare employer will be able to understand the nuances of legislation governing the application of material liability of employees of organizations. Given that the issues of concluding and executing agreements on full collective (brigade) liability are very common due to the development of a market economy, especially in trade organizations, some points should still be paid attention to.

So, in modern trade organizations operating in the format of supermarkets, hypermarkets, etc., sometimes there is a division of "territories" of customer service: a trading floor, departments of cooked food, production facilities, utility rooms, etc. The legislator has provided an alternative to collective liability - brigade liability, but, unfortunately, did not disclose this concept properly.

In Soviet times, the order of the USSR Ministry of Trade of August 19, 1982 N 169 "On approval of the Instructions on the procedure for the application in state trade of legislation regulating the liability of workers and employees for damage caused to an enterprise, institution, organization" (hereinafter referred to as the Instructions) was in force. It has not been abolished, therefore it seems possible to apply it in a limited manner, if its provisions do not contradict the current legislation.

In accordance with clause 2.6 of the Instructions, the brigade's liability for valuables located on the trading floor (in production) and in the utility room can be established if:

- the utility room is used by only one team, all its members have free access to material assets located both in the trading floor and in the utility room, and participate in all trade, warehouse and production operations;

- all commodity operations of production, ancillary storage facilities, commodity-money operations of the trading floor constitute a single process of work of the brigade and are controlled by all its members.

Liability separately for valuables located on the trading floor and in the utility room (warehouse) is applied at enterprises that have common utility rooms for supplying goods to several teams working in separate departments or sections. In these cases, two or more teams are created, each of which reports independently for the valuables located on the trading floor, or for the valuables stored in the utility room / warehouse (clause 2.8 of the Instructions).

In large department stores and specialized stores with separate warehouses, brigade material liability can be organized separately in departments (sections) and in warehouses. In stores where the trading floor is located in rooms isolated from each other, brigade liability is established separately for the valuables located in each of these rooms (clause 2.9 of the Instructions).

Thus, we see that the possibility of concluding agreements on the full brigade liability of individual brigades exists. It remains for the employer to distinguish between the concepts of "team" and "collective" liability based on the specifics of the implementation of trading activities.

In other words, if there are signs of the presence of separate brigades, for example:

- division of divisions: trading floor, production;

- distribution of employees by departments;

- delimitation of property entrusted to employees;

- the isolation of the premises, it will be considered correct to conclude agreements on full brigade liability (a separate agreement for each brigade), and not agreements on full collective liability.

The risk of an incorrect conclusion of an agreement on full liability lies in the fact that if employees of a certain team are held liable for the lack of valuables that are beyond the control of this team, these workers can go to court in connection with the violation of their rights, expressed in the establishment of full financial responsibility for property that was not entrusted to them and control over which, due to limited access, they could not exercise. For example, a meat production chef cannot be responsible for a shortage of cakes on the trading floor, and a salesperson on a display cannot be responsible for a shortage of products used in production.

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As you can see, the process of bringing employees to collective liability is very laborious. Here, the nuances of personnel workflow, and the quality of the work of accounting during inventory, and the realities of doing business, and circumstances that are not at all dependent on the employer are important - an employee can be a student, a pensioner, a mother of young children.

Judicial practice does not make life easier for the employer, therefore, in order to successfully attract employees to CMO, all of the above nuances must be taken into account.