On November 28, 2017 Plenum of the Supreme Court of the Russian Federation (hereinafter — the “Supreme Court”) adopted the Resolution “On some issues arising when considering administrative liability cases under article 19.29 of the Russian Administrative Offences Code (hereinafter — the “Resolution”).
The Resolution focuses at ensuring uniform application of article 19.29 of the Russian Administrative Offences Code (hereinafter — the “Administrative Code”) by courts. The article provides liability1 of the employer or customer of works (services) (hereinafter — the “Employer”) for breach of his obligation2 within 10 days of conclusion of a contract with the citizen previously employed at the state (municipal) service (hereinafter — the “Employee”) to report to the representative of the Employee’s former employer at the last place of his service when hiring such Employee under:
- a labor contract; or
- a civil law contract (civil law contracts) on execution of works (rendering of services) within a month worth more than RUB 100 000. Further, the Employer’s obligation lasts for 2 years after dismissal of an Employee with the state (municipal) service regardless of the Employee’s last place of employment and number of labor contracts concluded (clause 6 of the Resolution).
The main Supreme Court’s instructions in application of article 19.29 of the Administrative Code introduced by the Resolution are the following:
- Reporting to the employer at Employee’s last place of service is not required in internal secondary employment procedure
Under the Resolution Employer is not obliged to report to the employer at Employee’s last place of service when transferring the Employee to another position or to another job within the same organization, as well as concluding with the Employee the labor contract on the performance of other regular paid work at Employee’s free time within the same organization (internal secondary employment).
However, the conclusion with the Employee of the labor contract on performance of other regular paid work at Employee’s free time for any other employer (external secondary employment) causes the latter to report on the conclusion of such labor contract to the Employee’s employer representative at the last place of service.
Earlier Russian Ministry of Labor and Social Welfare expressed another opinion on this issue — conclusion of labor agreement on secondary employment with the Employee also entailed the employer’s obligation to send appropriate notice to the representative of the employer on the last place of Employee’s service3.
- The Employer will not be liable under article 19.29 of the Administrative Code if he lacks any information on holding the position of a state or municipal service by the Employee
Exemption of Employer from liability in connection with the lack of information about the Employee’s former holding the position of a state (municipal) service is conditional on failure directly by the Employee as well as lack of the specified information in the following documents:
- Employee’s labor book;
- Military service records and military card;
- Application form to be filled in when employing.
The obligation to report information regarding former holding the position of state (municipal) service is entrusted to the Employee4. The Supreme Court expressed the similar opinion before5, the Resolution reinforces the already existing judicial practice on this issue.
- Court can find administrative offence under article 19.29 of the Administrative Code as minor
The Resolution stipulates certain criteria to determine administrative offence under article 19.29 of the Administrative Code as minor:
- Administrative offence is not an essential breach of protected public relations in anti-corruption sphere (for instance, results in violation of the requirements as for the form and content of report directed at the last place of Employee’s service); and
- Administrative offence did not lead to the failure to obtain the necessary information for the purposes of the Federal law “On anti-corruption enforcement”.
Administrative offence’s determination as minor shall cause an exemption from administrative liability under article 2.9 of the Administrative Code.
Hence, the Supreme Court’s opinion on this issue has changed fundamentally over the past year: in its "Court practice review on administrative cases under article 19.29 of the Russian Administrative Offences Code“6 the Supreme Court determined that article 12 of the Federal law “On anti-corruption enforcement” is focused on the state safety precautions and thus its disregard cannot be construed as a minor administrative offence.
Therefore, the Resolution summarizes court practice over the last years as well as reconsiders its position on some issues deriving from contracts conclusion with the Employees, which in its turn aims at ensuring uniform application and updating of judicial practice.
1Administrative penalty for citizen from RUB 2 000 up to RUB 4 000; for official body — from RUB 20 000 up to RUB 50 000; for legal entity — from RUB 100 000 up to RUB 500
2Clause 4 article 12 of the Federal law of December, 25 2008 No. 273-FZ “On anti-corruption enforcement”; article 64.1 of the Russian Labor Code
3Letter of Russian Ministry of Labor and Social Welfare of May 11, 2017 No. 18-4/10/P-2943 “On addressing of guidelines regarding compliance with restrictions imposed on the citizen replacing the position of a state or municipal service, when concluding labor or civil law contract with an organization”
4The Employee’s obligation to report information regarding former replacement with the position of state (municipal) service is established by clause 2 article 12 of the Federal law of December, 25 2008 No. 273-FZ “On anti-corruption enforcement”
5"Court practice review on administrative cases under article 19.29 of the Russian Administrative Offences Code" approved by the Supreme Court Presidium on November 30, 2016
6"Court practice review on administrative cases under article 19.29 of the Russian Administrative Offences Code" approved by the Supreme Court Presidium on November 30, 2016