The collective material liability agreement allows you to protect the interests of the employer. But it is possible to conclude it only with those employees who perform the work included in the "List of posts and works, replaced by or implemented by employees, with which the employer may enter into written agreements on the full individual or collective (brigade) liability for a shortage of entrusted property", approved Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

For example, such an agreement can be concluded with a team of warehouse workers, since they fulfill the work provided for by the specified list: on the receipt for storage, processing (manufacturing), storage, accounting, leave (issuance) of material values.

The typical form of such a contract is provided for by the Resolution of the Ministry of Labor of Russia of December 31, 2002 No. 85.

Sample collective material responsibility agreement 2019, typical form

Order of the Ministry of Internal Affairs of the USSR of August 19, 1982 No. 169 approved "Instructions on the procedure for applying in public trade of legislation regulating the material responsibility of workers and employees for damage caused to the enterprise, institution, organization". According to paragraph 3.7 of the instructions, the Treaty on complete collective brigade factors cannot be concluded with the following persons:

• with employees of a small trade network (delivery and postal trade, trade in tents, kiosks, etc., including partially located in the trading hall), as well as other persons with whom an individual contract for full material responsibility is concluded;
• accepted on working on a part-time working day or part-time working week, if they do not dispose of commodity values \u200b\u200bwith other employees (these persons can be directed to independent areas of work with full individual materiality);
• employees of auxiliary professions (ironers, shutters, etc.);
• younger service personnel, loaders, utility (transport) workers, guard;
• persons under the age of 18;
• training and educational institutions, students studying directly at trade enterprises;
• not having experience with material values \u200b\u200bgraduates of higher and secondary special educational institutions and institutions of vocational education, as well as persons who have been trained in production during the first year of work. These employees are prohibited to be entrusted with independent work on the maintenance of material values \u200b\u200boutside the enterprise (delivering and postal trade, trade in tents, stalls, etc.).

Instructions continue to act to this day, but the order of their application is not defined. In this regard, this document can be used as a recommendatory, since the obligation of its norms nor or other federal laws is not established.

However, in this regulatory act there are important clarifications that have not found reflections in the current legislation. For example, according to claim 2.6 of the instructions, group responsibility for the values \u200b\u200bin the trading hall (in production) and in the utility room can be installed if:

• the utility room is used only by one group, all its participants have free access to material values \u200b\u200bthat are both in the trading room and in the utility room, and participate in all trade and warehouse and production operations;
• all commodity operations of production, utility warehouse, trade operations of the trading hall constitute a single process of the Group's work and are controlled by all its participants.

These provisions of the employer can be used in organizing the safety of property entrusted to the team.

Sample collective material liability contract for store

How to conclude a collective material responsibility agreement

The decision of the employer about the establishment of a complete collective (brigade) material responsibility is issued by order or order. Team members need to be familiar with the document under the signature.

Since there is no unified form of order, the employer has the right to develop it independently. In order (disposal) it is worth reflecting the following information:

• on the formation of the group;
• on the appointment of the head of the team;
• on the conclusion of a total collective (brigade) liability agreement.

Let us give a sample of filling out the order to establish complete collective material liability.

The order is necessarily applied to the concluded agreement on the total collective (brigade) material responsibility (paragraph 2 of paragraph 1 of Annex No. 4 of the Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85).

Procedure for collecting damage under the Treaty of Collective Liability

In case of detection of damage to the group to be reimbursed, the employer must:

1. Documented losses.
2. Request for all employees of the team explanation on the fact of the presence of damage.
3. Establish a causal relationship between causing losses and fulfillment / non-fulfillment of official duties by employees.

Losses to be reimbursed by a brigade are distributed among the members of the team in a proportionally monthly tariff rate (official salary) and time actually spent over the period from the last inventory until the day of the damage is detected (paragraph 7.3 of the instructions). This method of calculating the damage to the damage is recognized as logical and legitimate (paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52, the definition of the Moscow City Court of June 29, 2010 in case No. 33-16601).

It should be borne in mind that, according to part 4 art. 245 TC RFThe degree of guilt of each member of the team (brigades) is determined by agreement between all members of the team (brigades) and the employer. Consequently, the employer must draw up with members of the team (brigades) an agreement in which the amount of compensation will be indicated by each specific member of the team (brigades).

The amount of damage to be paid by a specific employee, in accordance with paragraph 7.3 of the instructions, can be determined by the following formula:

P1 \u003d s × z1 / (z1 + z2 + ... + zn),

• P1 - the amount of damage to the first member of the brigade;
• C - the amount of damages caused by the brigade;
• Z1, Z2, Z3, ... Zn - wages of members of the brigade for the measurement period in the salary, taking into account the worked time.

When calculating the amount of damage to the salary, the premiums received by the staff are not included, as well as the day off, compensation and other payments, which, according to the legislation, is not evidence.

Accordingly, after determining the amount of damage compensation, a written agreement on the amount and order of its repayment is drawn up. The agreement is drawn up by all the participants of the brigade and signed by them and the employer.

If losses are accumulated in court, the degree of guilt of each participant of the team is determined by the court (part 4 art. 245 TC RF).

The current legislation does not provide for the joint responsibility of employees with whom a collective material responsibility agreement concluded, with damage to the employer.

Exemption from the responsibility of the team member

The liberation from the collective factors of the participant of the brigade is possible by agreement between the employer and the rest of the brigade or in court. In court for liberation from substantiality, a team of brigade must prove the lack of his guilt (h. 3 art. 245 TC RF). The employer does not need to prove the presence of the guilt of each member of the team (brigades). It is obliged to determine the amount of damage and the reason for its occurrence ( art. 247 TC RF).

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Question

We wanted to conclude an agreement on complete property responsibility with the brigade. The brigade includes crane machinists, soloers, master, senior slings. Our company is engaged in the repair pipe. The duties of landlords and crane machinists include loading and unloading on pipe machines for the needs of the customer. Tap driver and master refuse to sign the contract, motivating that they are not responsible for the pipe. As by law, we can make them sign a contract and what procedure should we do?

Answer

With a crane driver, it is impossible to conclude a material liability agreement, since this post is not in the list of posts and works that are replaced by or implemented by employees, with which the employer may enter into written agreements on complete individual material responsibility for the launch of entrusted property. With regard to the master, you can enter into a material liability agreement, if it is a master of construction and installation work (which is not followed from the question). From the terms of the question it follows that employees will fulfill the duties of movers (loading-unloading). And with loaders (and in relation to their duties) it is impossible to conclude a material liability agreement, since these works and position are not included in the list.

Treaties on full material responsibility can be signed only with those employees and the implementation of such types of work that provides for the list of posts and works. Such clarifications are given in a letter of Rostrud dated October 19, 2006 No. 1746-6-1 .

From the definition of the Supreme Court of the Russian Federation of 19.11.2009 No. 18-B09-72 follows: legislation provides for specific requirements, in the execution of which the employer may conclude a written agreement on full material responsibility with a separate employee, a list of posts and works, in which such agreements may be concluded , mutual rights and obligations of the employee and the employer to ensure the safety of the material values \u200b\u200btransferred to him by the report. Failure to comply with the requirements of the legislation on the procedure and conditions of the conclusion and execution of the Treaty on complete individual liability can serve as a basis for the liberation of the employee from the obligation to compensate the damage caused by its fault in full, exceeding its average monthly earnings. The discrepancy between the post and performed work specified in the list indicates that the agreement on full material liability cannot be concluded.

The list of extended interpretation is not subject to. In addition, in paragraph 3.7 of the order of the USSR Ministry of Economic Development of the USSR on August 19, 1982 No. 169 indications on the procedure for applying in public trade of legislation regulating the material responsibility of workers and employees for damage caused by the enterprise, institution, organization (acts in a part not contrary to the Labor Code of the Russian Federation) It is indicated that the team with collective material liability cannot be included: the younger service personnel, movers, utility (transport) workers, guard.

Justification of this position in the materials of the "Frame System".

« With what employees can be concluded a contract for full liability

Contracts for full material liability can not be concluded with all employees, but only with those that:

• directly serve or use money (product) or other property owned by the organization;
• reached 18 years of age;
• their position or work is assigned to the number of those who allow the conclusion of such a contract.

The list of posts and works with which you can conclude written agreements on complete liability, approved by the Resolution of the Ministry of Labor of Russia of December 31, 2002 No. 85.

To conclude contracts for full material responsibility with employees whose posts are not provided for by the list approved by the Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85, illegally. The courts are also occupied by the courts (see, for example, the appellate definitions of the Irkutsk Regional Court of 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 a collective (brigadier) responsibility

Introduce collective (brigadier) material responsibility in the following cases:

• if any work, employees are fulfilled together;
• if it is difficult to delimit the responsibility of each of them for the safety of property (for example, several employees (guards, drivers) are responsible for storing or transporting goods);

if appropriate work is included in the list of work, in respect of which the collective responsibility can be introduced (Annex 3 to the Resolution of the Ministry of Labor of Russia of December 31, 2002 No. 85). Such an order is specified in part 1 of Article 245 of the Labor Code of the Russian Federation.

Brigadier responsibility can be introduced, for example, for employees who are engaged in delivery (courier services), for sellers, movers, storekeepers, etc. It is often imposed by organizations that are engaged in the repair of household appliances, provide laundry services, dry-cleaners, carry out the transportation and delivery of goods.

To introduce brigade responsibility, you need:

• issue an order to establish brigade responsibility and familiarize employees with new order;
• to conclude a collective liability agreement with the relevant group of employees.

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

Tell the executive order and familiarize yourself with the staff under the signature. Let each employee write on the order "with the order acquainted" and put the signature. In order, the management team (brigade) will lay on the team leader (brigades). At the same time, the head must necessarily be the head of the unit. When appointing a manager should take into account the opinion of all employees of the team (paragraph 3 of Annex No. 4 to the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85). It should be noted that the head of the collective (brigades) only leads the team, and the responsibility for damage caused to the employer is assigned to each participant in the team (Art. 245 of the Labor Code of the Russian Federation). The typical form of a collective responsibility agreement was approved by the Resolution of the Ministry of Agriculture of Russia of December 31, 2002 No. 85 ".

Professional reference system for lawyers in which you will find an answer to any, even the most difficult question.

Treaty on the full collective (brigade) material liability _________________________ _________________________ _________________________ _____________________________, acting on the basis of _________________________, hereinafter referred to as the "Employer", on the one hand and members of the team (brigades) _________________________, hereinafter referred to as "team (brigade)", in The face of the head of the team (brigadier) _________________________ On the other hand, and together here, the "parties", concluded this Agreement on the following: 1. Subject of the contract 1.1. The team (brigade) takes on a collective (brigade) material responsibility for the nonstation of the safety of the property, entrusted to him to fulfill work _______________________, as well as for damage to the employer as a result of damage to them to other persons, and the employer undertakes to create a collective (brigade) necessary to properly execute commitments under this Agreement. 2. Establishing a complete collective (brigade) liability. Brigade formation 2.1. The decision of the employer on the establishment of a complete collective (brigade) material responsibility is issued by the order (order) of the employer and is announced by the team (brigade) under the painting. 2.2. The recruitment of the newly created team (brigades) is carried out based on the principle of voluntariness. When the team (brigades) is taken into account in the form of the team (brigades) of the team (brigades). 2.3. The management team (brigade) is assigned to the head of the team (brigadier). The head of the team (brigadier) is appointed by the order (order) of the employer. At the same time, the view of the team (brigades) is taken into account. With the temporary absence of the head of the collective (brigadier), his duties are assigned to the employer for one of the members of the team (brigades). 3. Rights and obligations of the Parties 3.1. The team (brigade) has the right to: - to participate in the reception of entrranted property and carry out mutual control of work on storage, processing, sale (vacation), transportation or use in the process of production of entrusted property; - take part in inventory, revision, other verification of the preservation of the state of the defendant (brigade) of property; - Get acquainted with the reports on the movement and residues of the defendant (brigade) of property; - in the necessary cases, to require an employer inventory of the ownership of the property (brigade) of property; - To declare the employer about the discharge of members of the team (brigades), including the head of the team (brigadier), which, in their opinion, cannot ensure the safety of the defendant (brigade) of the property. 3.2. The team (brigade) is obliged: - carefully refer to the owned team (brigade) property and take measures to prevent damage; - in the prescribed manner, keep records, draw up and promptly submit reports on the movement and residues of the defendant to the team (brigade) of property; - to inform the employer in a timely manner about all the circumstances threatening the preservation of the property of the team (brigade) of property. 3.3. The employer is obliged to: - Create a team (brigade) the conditions necessary to ensure the complete preservation of property entrusted to the team (brigade); - in a timely manner to take measures to identify and eliminate the reasons impeding the provision of the team (brigade) of the preservation of entrusted property, to identify specific persons responsible for damage and attract them to the statutory liability; - To acquaint the team (brigade) with current legislation on the material responsibility of employees for damage caused to the employer, as well as with other regulatory legal acts (including local) on the procedure for storage, processing, sales (vacation), transportation, applications in the process production and implementation of other operations with property transferred to it; - to provide a team (brigade) the conditions necessary for timely accounting and reporting on the movement and remnants of the property entrusted to him; - consider the issue of validity of the requirements of the collective (brigades) on the inventory of property entrusted to him; - to consider in the presence of an employee declared a discretion and, in case of the reason for the discharge, take measures to conclusion from the team (brigades), to address its further work in accordance with the current legislation; - consider the reports of the team (brigades) about the circumstances that threaten the safety of the property entrusted to him and take measures to eliminate these circumstances. 3.4. The employer has the right to consider specific circumstances under which damage was caused, fully or partially refuse to recover from the guilty team (brigades). 4. The procedure for keeping accounting and reporting 4.1. Receiving property, accounting and reporting on the movement of property is carried out in the prescribed manner by the head of the team (brigadier). 4.2. Planned inventory of the ownership of the property (brigade) of property are carried out within the deadlines established by the current rules. 4.3. Explain-free inventories are carried out: - when changing the head of the team (brigadier); - when retired from the team (brigades) more than 50 percent of its members; - At the request of one or more members of the team (brigades). 4.4. Reports on the movement and residues of the defendant of the team (brigade) of property are signed by the team leader (brigadier) and in order of priority one of the team members (brigades). The content of the report is announced by all team members (brigades). 5. Reimbursement of damage 5.1. The basis for the involvement of members of the team (brigades) to material responsibility is the direct valid damage directly caused by the staff (brigade) to the employer, as well as the damage resulting from the employer as a result of compensation for damage to other persons. 5.2. The material responsibility of the team (brigades) is excluded in cases of damage due to irresistible forces, normal economic risk, extreme necessities or the necessary defense or non-fulfillment by the employer duties to ensure appropriate conditions for storing property entrusted to the team (brigade). 5.3. The team (brigade) and / or a member of the team (brigades) is exempt from material liability if it is established that the damage is not caused by the fault of members (members) of the team (brigades). 5.4. The amount of damage caused to the employer in the loss and sparklers of property is determined by the actual losses calculated on the basis of market prices operating in this area on the day of damage, but not lower than the value of the property according to accounting data, taking into account the degree of wear of this property. 6. Final provisions 6.1. This Agreement comes into force with _________________________ and is valid for the entire period of the team (brigades) with the property entrusted to him from the employer. 6.2. When changing the head of the collective (brigadier) or when retired from the team (brigades), more than 50 percent of its initial composition must be renewed. 6.3. This Agreement is not renewed when retired from the team (brigades) of individual workers or admission to the team (brigade) of new employees. In these cases, against the signature of the leaving member of the team (brigades), the date of his disposal is indicated, and the newly adopted employee signs the contract and indicates the date of entry into the team (brigade). 6.4. This Agreement is drawn up in two, having the same legally binding copies, of which one is at the employer, and the second - the leader of the team (brigadier). 6.5. The order (order) of the employer on the establishment of a complete collective (brigade) material responsibility is an integral part of this Agreement. 7. Details and signatures of the parties Employer: _________________________ _________________________ _________________________ _________________ _________________________ Registered at the address: _____________________ _________________________ _________________________ _________________________ _____________________________________________________________ _________________________ _________________________ ____________________ 2 _________________________ _________________________ A newly adopted in the team (brigade) Employees: No. P / P F. I. O. Signature of the employee Date of entry into the team 1 _________________________ _________________________

Appendix No. four

to the settlement of the ministry

labor and social development

Russian Federation

Treaty
about complete collective (brigadier) material responsibility

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

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

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

on the one hand, members of the team (brigades) .............................................................

(Name of the workshop, department, separation, farms, plot, other divisions)

hereinafter referred to as "team (brigade)", represented by the head

The team (brigades) ....................................... ... ......................................................
(surname, name, patronymic; Position)

concluded real Treaty of material responsibility The following:

1. The Subject of the Agreement

The team (brigade) takes on complete collective (brigade) material responsibility For the absence of the safety of the property, entrusted to him for

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

and also for damage to the employer as a result of compensation for damage to other persons, and the employer undertakes to create a team (brigade) the conditions necessary for the proper execution of the commitments made under this Agreement.

2. General provisions

2.1. Employer Decision complete collective (brigade) liability It is issued by order (ordered) of the employer and is announced by the team (brigade).

The order (order) of the employer about the establishment of a complete collective (brigade) liability is attached to this Treaty.

2.2. The recruitment of the newly created team (brigades) is carried out based on the principle of voluntariness. When the team (brigades) is taken into account in the form of the team (brigades) of the team (brigades).

2.3. The management team (brigade) is assigned to the head of the team (brigadier).

The head of the team (brigadier) is appointed by the order (order) of the employer. At the same time, the view of the team (brigades) is taken into account.

With the temporary absence of the head of the collective (brigadier), his duties are assigned to the employer for one of the members of the team (brigades).

2.4. When changing the head of the collective (brigadier) or when retired from the team (brigades), more than 50 percent of its initial composition must be renewed.

2.5. This Agreement is not permitted when retired from the team (brigades) of individual workers or admission to the team (brigade) of new employees. In these cases, against the signature of the leaving member of the team (brigades), the date of his disposal is indicated, and the newly adopted employee signs the contract and indicates the date of entry into the team (brigade).

3. Rights and obligations

3.1. The team (brigade) has the right:
- participate in the reception of entrusted property and carry out mutual control of work on storage, processing, sale (vacation), transportation or use in the process of production of entrusted property;
- take part in inventory, revision, other verification of the preservation of the state of the defendant (brigade) of property;
- Get acquainted with the reports on the movement and residues of the defendant (brigade) of property;
- in the necessary cases, to require an employer inventory of the ownership of the property (brigade) of property;
- To declare the employer about the discharge of members of the team (brigades), including the head of the team (brigadier), which, in their opinion, cannot ensure the safety of the defendant (brigade) of the property.

3.2. The team (brigade) is obliged:
- carefully refer to the owned team (brigade) property and take measures to prevent damage;
- in the prescribed manner, keep records, draw up and promptly submit reports on the movement and residues of the defendant to the team (brigade) of property;
- to inform the employer in a timely manner about all the circumstances threatening the preservation of the property of the team (brigade) of property.

3.3. The employer must:
- to create a team (brigade) the conditions necessary to ensure the complete preservation of property entrusted to the team (brigade);
- in a timely manner to take measures to identify and eliminate the reasons impeding the provision of the team (brigade) of the preservation of entrusted property, to identify specific persons responsible for damage and attract them to the statutory liability;
- To introduce the team (brigade) with current legislation on material responsibility employees for damage caused to the employer, as well as with other regulatory legal acts (including local) on the procedure for storage, processing, sales (vacation), transportation, application in the production process and the implementation of other operations with the property transferred to it;
- to provide a team (brigade) the conditions necessary for timely accounting and reporting on the movement and remnants of the property entrusted to him;
- consider the issue of validity of the requirements of the collective (brigades) on the inventory of property entrusted to him;
- to consider in the presence of an employee declared a discretion and, in case of the reason for the discharge, take measures to conclusion from the team (brigades), to address its further work in accordance with the current legislation;
- consider the reports of the team (brigades) about the circumstances that threaten the safety of the property entrusted to him and take measures to eliminate these circumstances.

4. Procedure for conducting accounting and reporting

4.1. Receiving property, accounting and reporting on the movement of property is carried out in the prescribed manner by the head of the team (brigadier).

4.2. Planned inventory of the ownership of the property (brigade) of property are carried out within the deadlines established by the current rules.

Explain-free inventory are carried out when changing the head of the team (brigadier), when retired from the team (brigades) more than 50 percent of its members, as well as at the request of one or more members of the team (brigades).

4.3. Reports on the movement and residues of the defendant of the team (brigade) of property are signed by the team leader (brigadier) and in order of priority one of the team members (brigades).

5. Damage compensation

5.1. The basis for the involvement of members of the team (brigades) to material responsibility is the direct valid damage directly caused by the staff (brigade) to the employer, as well as the damage resulting from the employer as a result of compensation for damage to other persons.

5.2. The team (brigade) and / or a member of the team (brigades) is exempt from material liability if it is established that the damage is not caused by the fault of members (members) of the team (brigades).

5.3. Determination of the amount of damage caused by the team (brigade) to the employer, as well as the procedure for its compensation is governed by applicable law.

5.4. This Agreement comes into force with .................. and acts for the entire period of the team (brigades) with the property entrusted to him.

5.5. This contract is drawn up in two having the same legally binding copies, one of which is at the employer, and the second - the head of the team (brigadier).

5.6. Changing the terms of this Agreement, the addition, termination or termination of its action is carried out under a written agreement of the parties, which is an integral part of this Agreement.

6. Addresses and signatures of the parties

Employer ..........................................................................................................

Team leader (brigadier) ..................................................................

Members of the team (brigades) ..................................................................................... ...

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

"......." ........................... 20 ......
MP

• Download a sample of a collective liability agreement.

__________________

See also:

One of the most difficult institutions of labor law is the collective material responsibility of employees before the employer. The path of the employer who wants to attract to the collective material responsibility of their own employees, a tortist and a ternist, 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 material responsibility

To begin with, we will briefly consider the features of collective material liability (CMO), distinguishing it from individual material liability. It is they who give rise to difficulties and errors in the use of KMO.

The first characteristic feature of the KMO is its collectivity. In other words, employees have common access to commodity values \u200b\u200b(TMTs), and to distinguish between each of them to the TMC in economic processes is not possible. These values \u200b\u200bworkers serve together (part 1 of Art. 245 of the Labor Code of the Russian Federation).

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

The third feature of the KMO is a special role of the degree of guilt of each member of the team, the procedure for its definition and evidence (part 4 of Art. 245 of the Labor Code of the Russian Federation).

The fourth is associated with the proving size of damage caused to the employer: it is necessary to take into account the salary of each member of the team, the degree of its guilt, the time of work in the team from the day of the last inventory until the day of the detection of damage (paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52 "On the application by the courts of legislation regulating the material responsibility of employees for damage caused to the employer", further - a decree N 52).

And the fifth feature is the possibility of reducing the recovery from a specific member of the team, depending on the set of factors (para. 3-5 p. 16 of the Resolution No. 52).

Employers errors in attracting employees to KMO

In order to analyze the mistakes and failures of employers in litigation, we first understand which circumstances are important when resolving the issue of the legality of attracting an employee to the CMO.

The first category of evidence is called "General". These circumstances must also be proved in the case of individual, and in the case of collective material responsibility (p. 4 of the Resolution No. 52).

These include:

- the lack of circumstances excluding the material responsibility of the employee;

- compliance with the rules for entering into a contract of full liability;

- the presence of direct valid damage and its size;

- worker's fault in causing damage;

- The causal relationship between the behavior of the employee and the damage.

These include:

- compliance with the rules for establishing precisely collective material liability;

- The composition of the members of the team, to which the claim is presented (to all of whether it is presented to everyone);

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

Conclusion of a full material responsibility agreement

Sometimes the employer instead of a total collective material responsibility agreement concludes agreements on individual material liability with several employees. In this case, access to TMC is carried out by collectively workers, and it is impossible to distinguish it.

Arbitrage practice. This situation is described in the appellate definition of SC on civil cases of the Orenburg Regional Court dated January 10, 2013 in case No. 33-83 / 2013. Two sellers worked in the store named, while at the end shifting the inventory of the TMC was not carried out, respectively, the sellers carried out access to the TMC together, and with them it was necessary to conclude a contract not about individual, but about collective material responsibility. In this case, the requirement of Part 1 of Art is violated. 245 TK RF. Because of what the employer lost his work.

A similar case is set forth in the appellate definition of SC on civil cases of the Irkutsk Regional Court of 11.05.2012 in case No. 33-3962 / 12.

Sometimes, taking a staff member of the team, forget with him to sign a CMO Treaty.

Arbitrage practice. In the appellate definition of the Supreme Court of the Republic of Karelia dated September 18, 2012 in case No. 33-2788 / 2012, it is said that the employee was paid to work twice in the same organization. For the first time, it was concluded a CMO Agreement, but forgotten in the second. Accordingly, it served as one of the main arguments for the refusal to the employer in a claim for damages caused by the employee.

There are 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 appellate definition of SK on civil cases of the Yaroslavl Regional Court in case No. 33-5164 / 2012 describes this particular case: the CMO Agreement is signed by the head of the team, the signatures of the remaining members of the team in the contract are missing. And they are present only on a sheet of familiarization with the contract. And the court of this circumstance did not consider the proper way to conclude a CMO Treaty. The damage was not charged even from that employee - the head of the team, who signed exactly the contract, and not a leaf of acquaintance. The multiplicity of persons from the employees in this case is absent, violated Part 2 of Art. 245 TK RF.

Loading proper conditions for the accounting and safety of the TMC

In some cases (which the employer "forgets") an employee can be either completely exempted from material responsibility, or the amount of compensation can be reduced. In particular, if the employer did not provide appropriate conditions for working with TMC (Art. 239 of the Labor Code of the Russian Federation).

Arbitrage practice. In the appellate definition of the Moscow City Court of 18.03.2013 in case No. 11-5867, it was stated that the embezzlement from the store was held regularly, it was known to the employer, but he did not take concrete measures to enhance the store's guard. The number of personnel and volumes of the store also objectively did not allow employees to fully monitor the TMC. Based on this, the court reduced the amount of damage to the female workers by applying Art. 250 Tk of the Russian Federation, paragraph 16 of the Resolution No. 52.

Arbitrage practice. In determining the SC on civil cases of the Rostov Regional Court of 31.05.2012 in case No. 33-6044 / 2012, much attention is paid to the following circumstances: the employer did not create appropriate conditions to ensure that the TMC movement is noted, the goods during admission were not checked by weight and volume. Accounting was conducted with significant violations, which was established by accounting expertise in the case. Under such circumstances, the employer could not recover the damage, which was whether it was not caused to him.

Non-compliance with the procedure for determining material damage, incorrect setting of its size

Courts pay great attention to the order of inventory, according to the results of which workers attract collective material liability. The order of inventory is governed by the methodological instructions on the inventory of property and financial obligations, approved by the Order of the Ministry of Finance of Russia dated June 13, 1995 for N 49 (hereinafter referred to as Methodical instructions).

Arbitrage practice. In the definition of the Moscow Regional Court of 24.05.2011 in case No. 33-11842, violations of the order of inventory 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 workers.

Arbitrage practice. A similar position is set forth in the definition of the Moscow Regional Court of November 30, 2010 in case No. 33-22915 / 2010. The court drew attention to the violation of the order of the inventory - financially responsible persons did not participate in it, not familiar with its results. Violated by the employer and Art. 247 of the Labor Code of the Russian Federation: no evidence of the claims of explanations from employees are not presented.

It should be noted that even if the employee gives voluntary consent to reimbursement of damage to him and partially reimburses the damage from his salary, this is not a reason to violate the procedure for detecting damage.

Arbitrage practice. Such a position is set out in the appellate definition of SC on civil cases of the Vologda Regional Court of 12.09.2012 in case No. 33-3764 / 2012. The court drew attention to the violation of methodical instructions and Art. 247 of the Labor Code of the Russian Federation, making the conclusion that "only with strict observance of the above-mentioned order, the employer has the right to recover from the employee caused damage."

Arbitrage practice. The definition of the Moscow Regional Court of 21.09.2010 in case No. 33-18292 illustrates an interesting situation when only the shortage of the TMC was taken into account when calculating the amount of damage, but not taken into account their excess. Accordingly, the employer-plaintiff incorrectly calculated the amount of damage by violating Art. 238 TK RF: It is necessary to take into account valid material damage. And the actual damage is a shortage of minus excess TMT. Therefore, the court refused to the employer.

Invalid definition of the degree of individual responsibility of members of the team

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

Arbitrage practice. In the definition of SC on civil matters of the Primorsky Regional Court of 27.06.2012 in case No. 33-5651, we are talking about two vendors, to which a lawsuit is made to recover from them the damage. They worked as part of a team of three, but the lawsuit was brought only to two. The third seller fired earlier, the inventory after her dismissal was not carried out. Damage arose, among other things, due to concealment, the shortage of financially responsible persons in the previous inventory, in which the third employee participated in the previously dismissed. Based on these facts, the court lowered two defendants the amount of damage to 40% of each, referring to paragraph 14 of the Resolution No. 52 and Art. 250 TK RF.

We also note that in the judicial act of the judicial act, the court also points out that it is impossible to recover the damage from the team members jointly, since the responsibility of the members of the team is not solidarity, but the equity, that is, the specific share of each team of the brigade should be determined. Oddly enough, not only employers allow a similar error, but also the courts themselves. Hasing courts this error is corrected.

Arbitrage practice. The Presidium of the Moscow City Court with its decree dated September 7, 2012 in case No. 44g-126/12 canceled the decisions of previous instances, which collected from the team in favor of the claimant the amount of damage to solidarly. And stressed that it is impossible to apply such a institution of civil law as a solidarity responsibility, to relations in the field of labor law, stating the non-compliance of Part 4 of Art. 245 TK RF, p. 14 of the Resolution No. 52.

The courts also actively use the ability to reduce the size of the responsibility of a member of the team, depending on its life and material circumstances, the time of work in the brigade, referring to Art. 250 of the Labor Code of the Russian Federation and paragraph 16 of the Resolution N 52, containing an open list of such circumstances. In particular, it is indicated: "... Evaluating the financial situation of the employee, its property situation should be taken into account (the size of earnings, other major and additional income), its marital status (number of family members, the presence of dependents, hold on executive documents), etc. P.". This is confirmed by the following examples of judicial practice.

Arbitrage practice. In the appeal definition of the Moscow City Court of 10.07.2012 in case No. 11-19325 one of the workers, the amount of charged damage was reduced due to the fact that she was a student, lost the breadwinner, worked in a brigade for less than a month before the date of the inventory and the detection of the shortage.

In the definition of the Moscow City Court of 24.12.2010 in case No. 33-3,8370, two members of the team, the amount of damage due to them was reduced by more than twice, since one was a pensioner suffering from a number of chronic diseases, and the other was pregnant and was also limited to His funds.

In the appellate definition of SC on civil cases of the Belgorod Regional Court of 02.10.2012 in case No. 33-2865, one of the workers the amount of damage is reduced due to the presence of a young child and small income.

Unfortunately for the employer, in the same paragraph 16 of the Resolution No. 52, it was noted that a decrease in the amount of recovery from one or more members of the team (brigades) cannot serve as a basis for an appropriate increase in the amount of recovery from other members of the team (brigades). The only plus: in this paragraph it is indicated that the court is not entitled to completely free the employee from the material responsibility.

Thus, even if the employer collected all the necessary evidence to attract workers to material responsibility, they may be pregnant, retirees, large-style, alimony payers, etc. among them. And this will be the basis for reducing the accumulated amounts of damage.

What to do is to prevent failures in court cases with financially responsible members of the team? Consider this question more.

First, it is necessary to take action from the very beginning, at the stage of concluding an agreement on the material responsibility of workers. It is necessary to correctly determine the type of material responsibility, depending on how many employees and how they carry out access to TMC. If there are features specified in Part 1 of Art. 245 TK RF, it is necessary to establish precisely collective, and not individual material responsibility.

Secondly, the CMO Treaty needs to be signed with all members of the team. Please note: Introduction to a personal signature with the text of the contract does not mean its signing by the employee. In this case, the contract will not act.

Thirdly, the employer should properly ensure the possibility of preservation and accounting of the TMC. If this does not happen, the omission data will serve as a basis or for refusal to the lawsuit or to reduce the damage. It is objectively difficult, for example, to expect from two to three workers who are in a large trading room that they will be able to simultaneously sell goods and monitor their safety with a significant stream of buyers.

Fourth, it is necessary to carefully comply with the order of inventories and the norm of Art. 247 of the Labor Code of the Russian Federation: strictly follow the methodological instructions, request explanations, fix the refusal of the giving explanation, etc. It is these actions that make it possible to collect the main array of evidence that are decisive to establish the fact and size of damage.

Fifth, it is necessary to pay attention to the distribution of damage between employees, to consider the inventory of members of the collective, the time of work, the salary of each employee, the conscientiousness of their duties, the presence of softening circumstances. And, of course, it makes no sense to demand from workers of solidarial damages.

Opinion

Full Brigades Material Responsibility

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

So, in modern trade organizations working in the format of supermarkets, hypermarkets, etc., sometimes there is a division of "territories" of customer service: a trading room, prepared food departments, industrial premises, utility rooms, etc. The legislator has made an alternative to collective Material responsibility - brigadier material responsibility, but, unfortunately, did not disclose this concept properly.

In Soviet times, an order of the USSR Ministry of Internal Affairs dated 19.08.1982 N 169 "On approval of the instructions on the procedure for applying legislation in public trade regulating the material responsibility of workers and employees for damage to the enterprise, agency, organization" (hereinafter referred to). It was not canceled, therefore its application is possible in a limited manner, if its provisions do not contradict the current legislation.

In accordance with paragraph 2.6, the instructions are the material responsibility of the brigade for the values \u200b\u200bin the trading room (in production) and in the utility room, can be established if:

- the utility room is used only by one brigade, all of its members have free access to material values \u200b\u200bthat are both in the trading room and in the utility room, and participate in all trade and warehouse and production operations;

- All product operations of production, utility warehouse, commercial and cash operations of the trading hall are a single process of work of the brigade and are controlled by all its members.

Material responsibility is separately for the values \u200b\u200bin the trading room and in the utility room (warehouse) applied at enterprises with general utility rooms for the supply of several brigades working in separate departments or sections. In these cases, two or more brigades are created, each of which is reported on their own for the values \u200b\u200bin the trading room, or for the values \u200b\u200bstored in the utility / warehouse (p. 2.8 instructions).

In large universal and specialized stores with separate warehouses, brigadier material responsibility can be organized separately in the departments (sections) and in warehouses. In stores where the vending lounge is located in the premises from each other, the brigade material responsibility is established separately for the values \u200b\u200bin each of these premises (p. 2.9 of the instructions).

Thus, we see that the possibility of concluding contracts on the complete brigadier liability of individual brigades. The employer remains to distinguish between the concepts of "brigade" and "collective" material responsibility based on the features of trade activities.

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

- Disposal of units: Shopping Hall, Production;

- distribution of employees by divisions;

- delimitation of property entrusted to employees;

- the separation of premises will correctly be considered the conclusion of contracts on complete brigadier liability (for each brigade a separate agreement), and not agreements on complete collective liability.

The risk of incorrect conclusion of a contract for full material liability is that in case of attracting employees of a certain brigade for the launch of values \u200b\u200boutside the control of this brigade, these employees may apply to the court in connection with the violation of their rights, expressing the full material Responsibility for the property that they did not entitle and control the control for which they could not carry out due to restricted access. For example, meat production cook cannot be responsible for a shortage of cakes located in the trading room, and the seller on display cannot be responsible for the shortage of products used in production.

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As you can see, the process of attracting workers to collective material liability is very laborious. The nuances of personnel document management, and the quality of the work of accounting during inventories, and the realities of economic activities, and the circumstances are not at all dependent on the employer, the employee may be a student, a pensioner, the mother of young children.

Judicial practice Life to the employer does not facilitate, respectively, to successfully attract employees to the CMO, all listed nuances should be taken into account.