Appendix no. 4

to the Ministry Resolution

labor and social development

Russian Federation

Agreement
on full collective (team) financial responsibility

………………………………………………………………………………………………,
(name of company)

…………………………. or his deputy………………………………………………………………,
  (Full name.)

acting on the basis …………………………………………………………………,
  (charter, regulations, power of attorney)

on the one hand, and members of the team (team) …………………………………………...

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

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

Collective (team) …………………………………………………………………….
(last name, first name, patronymic; position held)

concluded this Liability agreement about the following:

1. The Subject of the Agreement

The team (team) takes over full collective (team) financial responsibility for failure to ensure the safety of property entrusted to him for

…………………………………………………………………………………………………..,
(types of jobs)

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 for the Team (team) the conditions necessary for the proper fulfillment of the obligations assumed under this Agreement.

2. General provisions

2.1. The Employer's decision to establish full collective (team) financial responsibility is formalized by order (instruction) of the Employer and announced to the Team (team).

The Employer's order (instruction) to establish full collective (team) financial liability is attached to this Agreement.

2.2. The recruitment 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.

2.3. Management of the Team (team) is entrusted to the head of the Team (foreman).

The head of the Team (foreman) is appointed by order (instruction) of the Employer. In this case, the opinion of the Team (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).

2.4. When there is a change in the head of the Team (team leader) or when more than 50 percent of its original composition leaves the Team (team), this Agreement must be re-signed.

2.5. This Agreement is not renewed if individual employees leave the Team (team) or new employees are admitted to the Team (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).

3. Rights and obligations

3.1. The team (team) has the right:
- participate in the acceptance of entrusted property and exercise mutual control over the work of storage, processing, sale (release), transportation or use of entrusted property in the production process;
- take part in inventory, audit, and other verification of the safety of the property entrusted to the Team (team);
- get acquainted with reports on the movement and balances of property entrusted to the Team (brigade);
- in necessary cases, demand from the Employer to conduct an inventory of the property entrusted to the Team (team);
- inform the Employer about the recusal of members of the Team (team), including the head of the Team (team leader), who, in their opinion, cannot ensure the safety of the property entrusted to the Team (team).

3.2. The team (team) is obliged to:
- treat the property entrusted to the Team (team) with care and take measures to prevent damage;
- in accordance with the established procedure, keep records, draw up and promptly submit reports on the movement and balances of the property entrusted to the Team (team);
- promptly notify the Employer of all circumstances that threaten the safety of the property entrusted to the Team (team).

3.3. The employer is obliged:
- create for the Team (team) the conditions necessary to ensure the complete safety of the property entrusted to the Team (team);
- timely take measures to identify and eliminate the reasons preventing the Team (team) from ensuring the safety of the entrusted property, identify specific persons responsible for causing damage, and bring them to responsibility established by law;
- familiarize the team (team) with the current legislation on financial liability 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 (release), transportation, use in the production process and other operations with the property transferred to him;
- provide the Team (team) with the conditions necessary for timely accounting and reporting on the movement and balances of the property entrusted to it;
- consider the validity of the request of the Team (team) to conduct an inventory of the property entrusted to it;
- consider, in the presence of the employee, the challenge submitted to him and, if the challenge is justified, take measures to remove him from the Team (team), resolve the issue of his further work in accordance with current legislation;
- consider reports from the Team (team) about circumstances that threaten the safety of the property entrusted to it, and take measures to eliminate these circumstances.

4. The procedure for maintaining records and reporting

4.1. Acceptance of property, accounting and reporting on the movement of property is carried out in the prescribed manner by the head of the Team (foreman).

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

Unscheduled inventories are carried out when there is a change in the head of the Team (team leader), when more than 50 percent of its members leave the Team (team), as well as at the request of one or more members of the Team (team).

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

5. Compensation

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

5.2. The Collective (team) and/or a member of the Collective (team) are released from financial liability if it is established that the damage was not caused by the fault of the members (member) of the Collective (team).

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

5.4. This Agreement comes into force on ……………… and is valid for the entire period of work of the Team (team) with the property entrusted to it from the Employer.

5.5. This Agreement has been drawn up in two copies of equal legal force, one of which is kept by the Employer, and the second by the head of the Team (foreman).

5.6. Changes to the terms of this Agreement, additions, termination or termination of its validity are carried out by written agreement of the parties, which is an integral part of this Agreement.

6. Addresses and signatures of the parties

Employer …………………………………………………..…………/……………………

Team Leader (Foreman) …………………………………./………………………

Members of the Team (team) ………………………………………….../…………………...

……………………………………………………………………………../……………………

"……." ……………………… 20…… g.
  m.p.

• Download a sample agreement on collective liability.

__________________

See also:

09.20.2018, Sashka Bukashka

An agreement on collective liability is an agreement between the employer and employees of an organization, concluded not individually with each employee, but with a group. This is done when it is impossible to delineate the responsibilities of each individual person. This sample agreement will be useful not only to the store manager, but also to the ordinary workers themselves, especially the salesperson in the brigade management structure, because you need to know in advance what they will be forced to sign!

Collective financial responsibility is a common practice. This allows you to protect the safety of the company's property. We will provide a sample agreement on full collective liability in the article (illustration and file for download), but first it makes sense to discuss the content and purpose of this document. Well, let's get started.

In what cases is a collective liability agreement drawn up?

An agreement on full collective brigade liability is concluded in accordance with Art. 245 of the Labor Code of the Russian Federation, in cases where values ​​are entrusted to a group of employees and they perform joint work. That is, it is not possible to outline the boundaries of the individual guarantee of each employee, and it is impossible to identify the specific culprit of the damage.

The purposes of concluding such an agreement in accordance with the law:

• determining the boundaries and scale of responsibility of the entire team for entrusted material assets;
• establishing a scheme and procedure for compensation of damages, taking into account the guilt of each employee.

Thus, if one employee is entrusted with material assets, for example, a seller, then he is responsible individually and a contract is concluded with him. If a whole team is allowed to store, transport, process, sell, it is necessary to draw up a team agreement. Otherwise, the employer will be faced with the problem of establishing guilt, and resolving the issue may become very complicated, even if it is considered in court (labor disputes are among the most complex, according to judicial practice).

So, store employees, the list of whom is in this brigade document, are responsible to the employer for loss and damage to entrusted property and are obliged to compensate for full material damage, the Labor Code directly states this; it will be possible to avoid liability only if a particular seller proves his innocence.

Sample agreement on collective liability 2018

This text is quite universal (remember that you can download the complete file to fill out at the end of the article). That is, if you need a collective liability agreement (sample for a store), then take this one and add your own unique details. You can also look at the standard form of Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85, there is also a sample agreement on collective responsibility, it is similar to ours.

With whom such an agreement can be concluded?

The already mentioned Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 approved the list of works for which collective responsibility can be introduced. This:

The contract cannot be concluded:

• If an agreement on individual financial responsibility has already been concluded with the employee,
• with junior service personnel (loaders, cleaners, watchmen, etc.),
• with employees under 18 years of age,
• with interns (students), as well as with young specialists in the first year of work.

The form of a collective liability agreement is usually standard, and it rarely contains details characteristic of a specific area of ​​the national economy. Because the purpose of the document is to establish responsibility, not to describe the nature of the work.

Now let's figure out how to draw up your own sample collective agreement on financial responsibility.

How to draw up a collective liability agreement

If you need to develop a sample agreement on brigade liability, you must not forget about the mandatory points that should be listed in it. Actually, for such a document it is more important to indicate the boundaries of brigade responsibility. The name of a specific point (for example, a store) where sellers perform their functions is not necessary, especially since the place of work can change by order of the manager. The structure of a brigade agreement includes much more important points.

Management aspects of such a document:

• inclusion in the brigade on a voluntary basis;
• taking into account collective opinion when appointing a foreman;
• procedure for replacing an absent foreman;
• if the composition of the brigade changes by half or more, the agreement is renewed;
• When a new member is included in the team, changes are made to the agreement.

Mandatory terms of rights and obligations:

• the sales team is obliged to ensure complete safety of the property, the employer creates the necessary conditions for this;
• the team promptly reports all situations that threaten trusted values, the manager reacts accordingly;
• the foreman keeps records of property and changes in its quantity, the employer creates conditions for this.

The head of the enterprise also undertakes to inform employees about all changes affecting the property and take into account the opinion of old-timers when forming a team.

Sellers also have the full right to participate in work activities related to the entrusted property: get acquainted with documents, acts, orders, demand an inventory, check the control system in accordance with their job responsibilities, subject to mandatory observance of the chain of command. There should be a separate clause about this in the brigade agreement.

The decision to establish full collective financial responsibility must be recorded by order or regulation in the organization. Employees must be familiar with it upon signature.

Procedure for collecting damages

The procedure for bringing to collective responsibility has its own characteristics established by law.

1. A commission is being created to investigate the case.
2. The team's fault is established and the damage is recorded (calculated).
3. A cause-and-effect relationship is established between the actions of workers and the damage. It must be established that there are no circumstances excluding guilt, for example, negligence on the part of management in ensuring storage rules, etc.
4. Explanatory notes are requested from all participants in the agreement on collective responsibility.

All these facts are carefully analyzed, and if the team’s guilt is proven, then the employees will be required to compensate the organization for losses. They are distributed in proportion to time worked and salary.

We remind you that this article is about collective responsibility. That is, for example, if you are asked to sign a “sample agreement on the collective financial responsibility of the seller,” then this is actually a meaningless set of words, since it is already clear from the name itself that the seller cannot personify the team’s guilt, he is not a scapegoat , Right? Below we provide a sample of collective financial responsibility, which is concluded directly with a group of sellers. This is the essence of collective responsibility.

The first thing you need to pay attention to is that drawing up a sample agreement on collective liability - the employer's right, not his obligation.

And this right really helps him avoid many financial losses caused by the fault of employees.

So, to make it clearer, let’s take a separate team, where all workers perform common work, which can lead to damage, damage to goods, and loss.

And it is not possible to share responsibility among everyone.

More often this is the field of activity cashiers, salespeople, storekeepers, catering workers and other professions whose activities are related to material assets.

Reference! The list of specialties for contracts of collective financial responsibility that may be assigned is stipulated in Art. 243 Labor Code of the Russian Federation.

Labor Code of the Russian Federation, Article 243. Cases of full financial liability

Financial liability in the full amount of damage caused is assigned to the employee in the following cases:

1. When, in accordance with this Code or other federal laws, the employee is charged with financial responsibility in full for damage caused to the employer during the performance of the employee’s job duties.
2. Shortages of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document.
3. Intentional causing of damage.
4. Causing damage while under the influence of alcohol, drugs or other toxic substances.
5. Causing damage as a result of criminal actions of an employee established by a court verdict.
6. Causing damage as a result of an administrative violation, if established by the relevant government body.
7. Disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws.
8. Causing damage not while the employee was performing his job duties.

Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization and the chief accountant.

Based on the results of the inventory, let’s say a shortage or damage to goods is discovered. If there is an agreement on full collective financial responsibility (the form can be found below), damages are shared among all employees equally or, by agreement between team members, equivalent to guilt. If the employee does not agree with the penalty imposed on him, then sum compensation for damage determined by the court.

Compilation rules

A collective liability agreement is a document that is compiled additionally to the employment contract. It can be concluded along with it, as well as later, when employees become financially responsible.

Let's look at how collective financial responsibility is compiled, the contract has basic rules.

Firstly, this is an employment relationship, which is concluded in writing between employees and the employer on compensation to the latter for material losses.

Concluded only with employees who turned 18 years old.

And they actually use and maintain the values ​​that are the subject of the contract.

Secondly, this is that the agreement on full collective brigade financial responsibility is concluded voluntarily with all members of the work team.

Thirdly, the collective brigade agreement on financial responsibility must indicate material values for which the team is responsible.

Fourthly, in order to remove responsibility from any employee, he must prove your non-involvement in the loss.

Fifthly, if damage caused by the fault of the team is compensated voluntarily by employees, then the amount of compensation established jointly by workers. If, if one of the employees disagrees, a trial is necessary, then the amount of compensation is already establishes the court.

Sixthly, an agreement on material brigade responsibility Every employee must sign on whom it is entrusted.

What is included in the KMO and what is its content?

How to correctly compile a KMO? What form of agreement on collective liability must have, and what is optional?

Reference! Before concluding such an agreement, it is necessary at a general meeting choose a leader(foreman) of the team (brigade).

Let us repeat once again that agreement on full collective financial responsibility (sample can be downloaded at the end of the section) must be signed by all responsible employees voluntarily.

This concerns the mandatory items. Also in KMO, at the request and agreement of the parties, you can be responsible for non-essential material resources necessary for the implementation of activities (consumables, household goods, office, equipment).

What is needed for a conclusion?

Collective liability (sample agreement) can be concluded if there is:

• employee's employment contract;
• rules adopted within the organization governing labor relations;
• job description;
• order to introduce full KMO;
• order appointing the head of the organization as a team foreman;
• order to open an enterprise;
• minutes of the team meeting.

What happens if you don't sign the agreement?

Quite often it happens that employee refuses to sign an agreement on full collective financial responsibility (the form is above), explaining this by the fact that doesn't want to take responsibility for mistakes and misdeeds of colleagues.

In this case, according to Art. 232 and 245 of the Labor Code, responsibility for material assets is issued separately from an employment contract document. When the work process involves the performance of duties by all members of the team, then only a standard agreement on collective financial responsibility is drawn up.

If one of the employees is against this or does not want to sign and fulfill an agreement on full material team responsibility, the employer must offer such employee other vacant positions.

Labor Code of the Russian Federation, Article 232. Obligation of a party to an employment contract to compensate for damage caused by it to the other party to this contract

The party to the employment contract (employer or employee) who caused damage to the other party shall compensate for this damage in accordance with this Code and other federal laws.

An employment contract or written agreements attached to it may specify the financial liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer – higher, than is provided for by this Code or other federal laws.

Termination of an employment contract after damage has been caused does not entail the release of the party to this contract from financial liability provided for by this Code or other federal laws.

Labor Code of the Russian Federation, Article 245. Collective (team) financial liability for damage

When employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full, collective (team) financial liability may be introduced.

A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team).

Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

If the vacancies offered to an employee do not like or there are no other specialties, the employer has the right terminate the business relationship with this employee (Article 77 of the Labor Code of the Russian Federation).

Labor Code of the Russian Federation, Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

1. Agreement of the parties (this Code).
2. Expiration of the employment contract (this Code), except for cases where the employment relationship actually continues and neither party has demanded its termination.
3. Termination of an employment contract at the initiative of the employee (Refusal of the employee to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code).
4. The employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (parts three and four of Article 73 of this Code).
5. Refusal of an employee to be transferred to work in another location together with the employer (part one of Article 72.1 of this Code).
6. Circumstances beyond the control of the parties (this Code).
7. Violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid. — Federal Law of June 30, 2006 N 90-FZ.

So, a collective liability agreement: what is it and what is it for? As we can see, this type of agreement can resolve many disputes that arise between employees and their employer. The main thing to consider all risks and discuss possible ways to resolve conflicts.

For even more information about collective financial responsibility, watch the following video:

"Kadrovik.ru", 2014, N 1

ON THE INTRODUCTION OF FULL COLLECTIVE MATERIAL RESPONSIBILITY

To reveal the topic of introducing full collective financial responsibility, it is necessary first of all to understand for what purposes and how teams (teams) are created. In some cases, due to objective reasons, one employee cannot perform the entire volume of work, and therefore the need inevitably arises to unite workers into groups.

If the work performed by a group involves the storage, processing, sale (release), transportation, use or other use of valuables transferred to employees, and it is impossible to differentiate the responsibility of each of them in the event of damage, the law defines such a group as a team (team), for workers of which collective (team) financial liability may be introduced (Part 1 of Article 245 of the Labor Code of the Russian Federation).

The emergence of teams (teams) is typical for such areas of activity as trade, construction, and public catering. The financial services sector is no exception, in which brigades or teams of workers are also created to carry out transactions with funds.

Collective liability is a derivative of the employee’s full financial responsibility, which means his obligation to compensate the employer for direct actual damage in full (Article 242 of the Labor Code of the Russian Federation).

While the limited financial liability of an employee means his obligation to compensate the employer for direct actual damage within the limits of his monthly earnings, unless otherwise established by the Labor Code of the Russian Federation or other federal laws, according to Art. Art. 238 and 241 of the Labor Code of the Russian Federation. The amount of damage exceeding the employee's average monthly earnings is not subject to compensation.

It should be noted that the introduction by the employer of full collective (team) responsibility allows all members of the team (team) to mutually control the safety of the employer’s material assets.

Let us consider in more detail the procedure for establishing collective (team) responsibility.

To protect the rights of employees, the employer can enter into an agreement with them on full financial liability. To do this, in accordance with the provisions of Art. 244 of the Labor Code of the Russian Federation, the following conditions must be simultaneously met:

The employee reaches 18 years of age;

The labor function must provide for the maintenance or use of monetary, commodity values ​​or other property and is named as part of the work or positions (professions) included in the approved list.

Thus, by Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85 “On approval of Lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) material responsibility, as well as standard forms of agreements on full material responsibility" (hereinafter referred to as Resolution of the Ministry of Labor of Russia N 85) approved:

A list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial responsibility for shortages of entrusted property;

A list of works during the performance of which full collective (team) financial liability for the shortage of property entrusted to employees can be introduced.

The employer's decision to introduce full collective (team) financial liability is formalized by order; Each employee of the team (team) must be familiarized with it against signature. This order must be attached to the liability agreement (see Appendix 1).

On a note. If the labor function does not provide for the maintenance of material assets, then the condition in the employment contract that the employee is obliged to fulfill obligations of full financial responsibility, even if there is a corresponding agreement on full financial responsibility, does not apply, since it reduces the level of rights and guarantees of the employee, and therefore The agreement on full financial liability concluded in accordance with this does not apply.

In accordance with Part 2 of Art. 245 of the Labor Code of the Russian Federation, an agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team) in writing. Under an agreement on collective (team) financial liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage (Part 3 of Article 245 of the Labor Code of the Russian Federation).

Due to the fact that failure to comply with the requirements of the current labor legislation on the procedure and conditions for concluding and executing an agreement on full liability may serve as a basis for releasing the employee from the obligation to compensate for damage in full if necessary, it is necessary to dwell in more detail on the agreement on full liability.

Concluding an agreement on full financial liability is the responsibility of an employee whose labor function is related to the maintenance of material assets and is indicated as part of the work or positions (professions) in the Lists approved by Resolution of the Ministry of Labor of Russia N 85.

An employee’s refusal to sign an agreement on full financial responsibility, if the performance of duties for the maintenance of material assets is the main job function of the employee, which was agreed upon when hiring, can be considered as a failure to fulfill job duties with all the ensuing consequences (clause 36 of the Resolution of the Plenum of the Supreme Court RF dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

The general provisions of the agreement on full collective (team) financial responsibility are provided for in the standard form of such an agreement, approved by Resolution of the Ministry of Labor of Russia N 85. It should be noted that the standard form of the agreement is advisory in nature and the employer has the right to make the necessary changes.

At the same time, some deviations from the standard form can lead to disputes between the employee and the employer, and as a result, to the invalidity of the drawn up contract. Thus, the absence in the contract of a provision on the right of the team (team) to take part in inventory, audit, or other verification (paragraph “b”, paragraph 6 of the Standard Form) prevents the application of measures of liability. The absence of an indication of the employer’s decision to establish full collective financial liability (clause 1 of the Model Form) entails the risk of recognizing the agreement on full collective (team) financial liability as invalid.

Thus, if an employer decides to use its own form of agreement on full collective (team) financial liability, it is necessary to ensure that the terms in the employer’s form do not worsen the position of the employee compared to those in the standard form.

The conclusion of agreements on full financial liability with other employees (whose positions are not indicated in the lists) may entail the application of administrative liability measures in accordance with the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and the concluded agreement will be considered invalid (clause 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”).

A written agreement on collective/team liability for damage is concluded between the employer and all members of the team (team).

The management of the team (team) is carried out by a foreman appointed by order of the employer. In the event of a change in the foreman or when more than 50% of the original employees leave the team (team), the agreement on full financial liability must be re-signed. The contract is not renewed if individual workers leave the team (team) or new people are admitted to the team (team). In these cases, the date of his departure is indicated against the signature of the retired member of the team (team), and the hired employee signs the contract and indicates the date of joining the team (team) in accordance with clause 2 of the Standard Form of the Agreement on Full Collective (Team) Responsibility.

When appointing a foreman and including new workers in a team/team, the opinion of the team must be taken into account. The legislation, however, does not establish exactly how it should be taken into account. Most legislative commentaries also do not disclose the procedure for such accounting. And yet, due to the specific nature of collective (team) responsibility, disputes are possible between employees and the employer in the case when the opinion of the team, containing an agreement to share responsibility with a new member, is not recorded by anyone anywhere.

The lack of direct regulation in the legislation allows the employer to independently establish the procedure for taking into account the opinions of the team. The following algorithm can be envisaged. The team leader (foreman), if he intends to include a new employee in the team, notifies all its members in writing (see Appendix 2) and provides complete information about this employee. The team (team), in turn, forms its opinion regarding the new employee, for example, by voting at a general meeting of the team (team) and recording the results of such voting in the minutes. Voting can be either open or secret. The protocol is presented to the foreman for making the appropriate decision.

There is another option, which, moreover, seems less labor-intensive.

It is necessary to provide mandatory written notification to members of the team (team) of the intention to include a new employee in their composition. The foreman delivers the notice to the members of the team (team) against signature and within 3 to 5 days expects a reasoned refusal (objection) from each of them. If there are no objections or the majority of members of the team (team) refrain from such objections, a decision is made to include the candidate in the team (team) (see Appendix 3).

If a team (team) refuses to accept a new employee, he can be offered a job in another team (team), taking into account the opinion of the team (team), or offered another job outside the team (team).

These rules are best enshrined in the text of the agreement on full collective (material) responsibility or in the relevant local regulatory act of the employer. However, it must be remembered that in this case, all employees should be familiarized with the document against signature (Part 2 of Article 22 of the Labor Code of the Russian Federation).

Thus, despite the fact that the institution of full collective liability has existed for quite a long time, a number of issues still remain unresolved. In this connection, it seems necessary to pay special attention to the employer’s local regulations governing issues of full material collective (team) responsibility.

Annex 1

Moscow 09/05/2013

ORDER N 1

On the establishment of collective (team)

financial liability

Due to the need to ensure the safety of the department's warehouse property

reception and due to the impossibility of delineating the responsibilities of each

employee in case of damage, guided by Art. 245 Labor Code of the Russian Federation,

I ORDER:

1. Establish a complete collective (brigade) material

responsibility of reception department employees performing reception work,

storage and distribution of products of FORTUNA LLC.

2. Include reception department workers in the team (team)

(Appendix 1 "List of reception department employees").

3. Appoint the head of the department as the head of the team (team)

reception of Petrov Ivan Sergeevich.

4. To the head of the HR department, Victoria Petrovna Sidorova, within

4.1. familiarize yourself with this Order under the signature of department employees

4.2. explain to these employees their rights and obligations arising in

connection with the signing of an agreement on full financial liability;

4.3. ensure that these employees sign an agreement on full

collective (team) financial responsibility.

5. I reserve control over the execution of this Order.

I have read the order:

Annex 1

to the Order dated 09/05/2013

"On the establishment of a collective (brigade)

material liability"

List of reception department employees

Appendix 2

Limited Liability Company "FORTUNA"

Moscow 09/15/2013

NOTIFICATION

Dear employee!

We remind you that in accordance with the local act of the employer, accounting

The opinions of the team (team) are formed at a general meeting of the team

meetings.

HR department by sending a corresponding request on behalf of the manager

team (team).

General Director Lakin (Lakin Alexander Ivanovich)

Notification received:

Appendix 3

Limited Liability Company "FORTUNA"

Moscow 09/15/2013

NOTIFICATION

employee of the team (team) of the reception department

on the admission of a new employee to the team (team)

Dear employee!

Due to the increase in the number of reception departments, we inform you that in

the composition of the department is proposed to include Roman Alexandrovich Ivanov in

junior specialist positions.

Considering that by Order dated 05/03/2013 N 1, employees of the sales department

full collective (team) responsibility has been established, you can

take part in forming the opinion of the team (team) about the new member

for the employer to take it into account when making a decision on the inclusion of Roman Ivanov

Alexandrovich to the team (brigade).

We remind you that in accordance with the local act of FORTUNA LLC, the opinion

team (team) is formed by sending to the employer

reasoned refusal (objection) (if any) of each member

team (team) within 5 (five) working days from the date of receipt

relevant notice.

In this regard, we ask you, if you have a reasoned refusal,

forward (objections) to the admission of a new member to the team (team)

it within 5 (five) working days from the date of receipt of this

notifications.

Please note that if there are no objections or the majority

members of the team (team) refrain from such objections,

the employer has the right to decide to include Ivanov Roman

Alexandrovich to the team (brigade).

You can obtain the information necessary to form an opinion at

HR department by sending a corresponding request on behalf of

team (team) leader.

General Director Lakin (Lakin Alexander Ivanovich)

Notification received:

_________________________________ _______________ "__" _____________ 201_

Full name of employee signature date

N. S. Shendrik

Head of

One of the most complex institutions of labor law is the collective financial responsibility of workers to the employer. The path of an employer who wants to bring his employees to collective financial responsibility 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 applying collective liability, which are reflected in judicial practice, and their analysis.

Features of collective liability

To begin with, let us briefly consider the features of collective liability (CMR), which distinguish it from individual liability. They are the ones that give rise to difficulties and errors in the use of CMO.

The first characteristic feature of CMO is its collectivity. In other words, employees have general access to inventory items, and it is not possible to differentiate the access of each of them to inventory items in business processes. Employees serve these values ​​together (Part 1 of Article 245 of the Labor Code of the Russian Federation).

The second significant feature is the plurality of persons on the part of employees in the agreement on full KMO (Part 2 of Article 245 of the Labor Code of the Russian Federation). There is only one contract, but its parties are all or part of the employees of the collective. 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 team member, 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 of clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”, hereinafter referred to as Resolution No. 52).

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

Mistakes of employers in attracting workers to CME

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

We will call the first category of evidence “general”. These circumstances must be proven both in the case of individual and in the case of collective liability (clause 4 of Resolution No. 52).

These include:

— absence of circumstances excluding the employee’s financial liability;

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

— the presence of direct actual damage and its size;

— the employee’s guilt in causing the damage;

— a causal connection between the employee’s behavior and the damage that occurred.

These include:

— compliance with the rules for establishing collective financial responsibility;

— the composition of the members of the collective against whom the claim is brought (is it brought against all members);

— the individual responsibility of each team member, taking into account his guilt, wages, and time spent working in the team.

Conclusion of an agreement on full financial liability

Sometimes an employer, instead of an agreement on full collective financial responsibility, enters into agreements with several employees on individual financial responsibility. At the same time, access to inventory items is carried out by employees collectively, and it is impossible to differentiate it.

Arbitrage practice. This situation is described in the appeal ruling of the Investigative Committee for 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, and at the end of the shifts an inventory of goods and materials was not carried out; accordingly, the sellers had access to goods and materials jointly, and it was necessary to conclude an agreement with them not on individual, but on collective financial responsibility. In this case, the requirement of Part 1 of Art. 245 Labor Code of the Russian Federation. Because of this, the employer lost the case.

A similar case is set out in the appeal ruling of the Investigative Committee for Civil Cases of the Irkutsk Regional Court dated May 11, 2012 in case No. 33-3962/12.

Sometimes, when hiring an employee to join the team, they forget to sign a KMO agreement 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 with her on KMO, but the second time they forgot about it. Accordingly, this served as one of the main arguments for refusing the employer’s claim for compensation for damage caused by the employee.

There are also cases when an agreement is signed only with the team leader, and the rest of the employees are only familiar with it.

Arbitrage practice. The appeal ruling of the Investigative Committee for Civil Cases of the Yaroslavl Regional Court in case No. 33-5164/2012 describes exactly this case: the agreement on KMO was signed by the head of the team, the signatures of the other members of the team are absent in the agreement. And they are present only in the sheet of familiarization with the contract. And the court did not consider this circumstance an appropriate way to conclude an agreement on KMO. The damage was not recovered even from that employee, the team leader, who signed the contract, and not the acquaintance sheet. There is no plurality of persons on the part of employees in this case; Part 2 of Art. 245 Labor Code of the Russian Federation.

Failure to provide adequate conditions for accounting and safety of inventory items

In some cases (which the employer “forgets”), the employee may be either completely relieved of financial liability, or the amount of compensation may be reduced. In particular, if the employer has not provided adequate conditions for working with inventory items (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 thefts 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 store volumes also objectively did not allow employees to fully exercise control over inventory items. Based on this, the court reduced the amount of damage recovered from employees by applying Art. 250 Labor Code of the Russian Federation, clause 16 of Resolution No. 52.

Arbitrage practice. In the ruling of the Investigative Committee for Civil Cases of the Rostov Regional Court dated May 31, 2012 in case No. 33-6044/2012, much attention is paid to the following circumstances: the employer did not create the appropriate conditions for employees to ensure that the movement of inventory items was recorded, the goods were not checked by weight and volume upon receipt. Accounting was carried out with significant violations, which was established by the accounting examination in the case. Under such circumstances, the employer was unable to recover the damage that either was or was not caused to him.

Failure to comply with the procedure for determining material damage, incorrect determination of its amount

Courts pay great attention to the procedure for conducting inventory, based on the results of which workers are held collectively liable. The procedure for conducting an inventory is regulated by the Methodological Guidelines for the Inventory of Property and Financial Liabilities, approved by Order of the Ministry of Finance of Russia dated June 13, 1995 No. 49 (hereinafter referred to as the Guidelines).

Arbitrage practice. The ruling of the Moscow Regional Court dated May 24, 2011 in case No. 33-11842 examined violations of the inventory procedure, due to 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 stated 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 - the financially responsible persons did not participate in it, and were not familiar with its results. Violated by the employer and Art. 247 of the Labor Code of the Russian Federation: evidence of demanding explanations from employees was not presented.

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

Arbitrage practice. A similar position is set out in the appeal ruling of the Investigative Committee for Civil Cases of the Vologda Regional Court dated September 12, 2012 in case No. 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 damages 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 inventory items 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 actual material damage. And the actual 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 employee, 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 for civil cases of the Primorsky Regional Court dated June 27, 2012 in case No. 33-5651, we are talking about two sellers against whom a claim was brought to recover damages from them. They worked as part of a team of three people, but the claim was brought against only two. The third salesperson quit earlier, and no inventory was taken after her dismissal. The damage arose, among other things, due to the concealment of the shortage by financially responsible persons during the previous inventory, in which a third employee who had previously resigned participated. Based on these facts, the court reduced the amount of damages recovered for the two defendants to 40% each, referring to paragraph 14 of Resolution No. 52 and Art. 250 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 team members jointly, since the responsibility of team members is not joint and several, but shared, that is, the specific share of each team member must be determined. Oddly enough, such a mistake is made not only by employers, but also by the courts themselves. Higher courts correct this error.

Arbitrage practice. The Presidium of the Moscow City Court, by its resolution dated 09/07/2012 in case No. 44g-126/12, canceled the decisions of previous instances, which collected the amount of damages jointly and severally from the team in favor of the plaintiff. 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, having stated non-compliance with Part 4 of Art. 245 Labor Code of the Russian Federation, clause 14 of Resolution No. 52.

The courts also actively use the possibility of reducing the amount of liability of a team member depending on his life and financial 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 (amount of earnings, other basic and additional income), his marital status (number of family members, presence of dependents, deductions under 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 sought was reduced due to the fact that she was a student, lost her breadwinner, and worked in a brigade for less than a month before the date of the inventory and identification of the shortage.

In the ruling of the Moscow City Court dated December 24, 2010 in case No. 33-38370, the amount of damages due to two members of the team was reduced by more than half, 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 the presence of a young child and small income.

Unfortunately for the employer, the same paragraph 16 of Resolution No. 52 notes 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 financial liability.

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

What to do to avoid failures in legal cases with financially responsible team members? Let's consider this issue in more detail.

Firstly, it is necessary to take measures from the very beginning, even at the stage of concluding an agreement on the financial liability of employees. It is necessary to correctly determine the type of financial liability depending on how many employees and how they access inventory items. If there are signs specified in Part 1 of Art. 245 of the Labor Code of the Russian Federation, it is necessary to establish collective rather than individual financial responsibility.

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

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

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 the refusal to give explanations, etc. It is these actions that make it possible to collect the bulk of evidence that is decisive for establishing the fact and amount of damage.

Fifthly, you need to pay attention to the distribution of damage between employees, take into account the team members who left at the time of the inventory, the working hours, the salary of each employee, the conscientiousness of their performance of their duties, and the presence of mitigating circumstances. And, of course, there is no point in demanding joint and several compensation for damages from workers.

Opinion

Full brigade financial responsibility

It is rare that an employer will be able to understand the nuances of the legislation governing the application of financial liability to employees of organizations. Considering that the issues of concluding and executing agreements on full collective (team) liability are very common due to the development of a market economy, especially in trade organizations, some points should still be given attention.

Thus, in modern trade organizations operating in the format of supermarkets, hypermarkets, etc., sometimes there is a division of “territories” for customer service: sales floor, prepared food departments, production premises, utility rooms, etc. The legislator has provided an alternative to collective material liability - brigade liability, but, unfortunately, did not disclose this concept properly.

In Soviet times, there was an order of the USSR Ministry of Trade dated August 19, 1982 N 169 “On approval of the Instructions on the procedure for applying in state trade the legislation regulating the financial liability of workers and employees for damage caused to an enterprise, institution, organization” (hereinafter referred to as the Instructions). It has not been repealed, so it seems possible to use it on a limited basis if its provisions do not contradict current legislation.

In accordance with clause 2.6 of the Instructions, the financial responsibility of the team for valuables located on the sales 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 sales area and in the utility room, and participate in all trade, warehouse and production operations;

— all commodity operations of production, auxiliary warehouse premises, commodity-money transactions of the trading floor constitute a single process of the team’s work and are controlled by all its members.

Financial liability separately for valuables located on the sales 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 sales floor, or for the valuables stored in the utility room/warehouse (clause 2.8 of the Instructions).

In large department stores and specialized stores that have separate warehouses, team financial responsibility can be organized separately in departments (sections) and warehouses. In stores where the sales floor is located in premises isolated from each other, brigade liability is established separately for the valuables located in each of these premises (clause 2.9 of the Instructions).

Thus, we see that the possibility of concluding agreements on full brigade financial responsibility of individual brigades exists. The employer remains to distinguish between the concepts of “team” and “collective” financial liability based on the characteristics of the trading activity.

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

— differentiation of departments: sales floor, production;

— distribution of employees among departments;

— delineation of property entrusted to employees;

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

The risk of incorrectly concluding an agreement on full financial liability is that if workers of a certain team are held liable for a shortage of valuables beyond the control of this team, these workers may go to court in connection with a violation of their rights, expressed in the establishment of full material liability. liability for property that was not entrusted to them and over which, due to limited access, they could not exercise control. For example, a meat production cook cannot be held responsible for a shortage of cakes on the sales floor, and a salesperson at a display cannot be held responsible for a shortage of products used in production.

* * *

As we can see, the process of bringing workers to collective financial responsibility is very labor-intensive. What matters here are the nuances of personnel document flow, the quality of the accounting department’s work when conducting inventories, the realities of doing business, and circumstances beyond the control of the employer—an employee may be a student, a pensioner, or the mother of young children.

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