On the role of the prosecutor in protecting the labor rights of minors

Usov Aleksei Yur'evich PhD in Law Associate Professor; Department of Prosecutorial Supervision and Participation of the Prosecutor in the consideration of civil and Arbitration cases; Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 alexus_555@mail.ru Other publications by this author

Nesterova Natal'ya Aleksandrovna Associate Professor; Department of Prosecutorial Supervision and Participation of the Prosecutor in the consideration of civil and Arbitration cases; Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 nesterova.n.a@inbox.ru

Introduction

The digitalization of public relations, the gradual introduction of modern technologies in various spheres of public life, which are easily perceived by young people, the transformation of ideas about the nature and methods of carrying out certain types of work, the early acquisition of necessary professional skills by teenagers are the reasons why citizens currently start working from an early age. In this regard, the implementation of prosecutorial supervision over the observance of the labor rights of minors is a matter of particular concern to the prosecutor's office ^{[1, p. 129]}. Currently, scientific research on the organization of the labor activity of minors is also becoming particularly relevant due to the fact that in the context of conducting a Special military operation, the need to involve minors in production activities is gradually increasing, which, in turn, contributes to an increase in the number of violations of the labor rights of minors.

Goals and objectives of the study

The purpose of the research is to determine the role of the prosecutor in protecting the labor rights of minors and to develop proposals for improving this type of prosecutorial activity.

The objectives of the study are to establish the specifics of the prosecutor's office's activities to protect the labor rights of minors; to determine the sufficiency of the regulatory regulation of the prosecutor's powers to protect the labor rights of minors; to determine the executive ability of acts of prosecutorial response in bringing to justice those responsible for violating the labor rights of minors; to formulate conclusions and proposals to improve the prosecutor's activities in the stated direction.

Methodology

The methodological apparatus consists of the following dialectical techniques and methods of scientific cognition: analysis, abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization and generalization. During the study, the method of statistical analysis of data on the number of violations of the labor rights of minors identified by prosecutors was applied, the data obtained were compared with information on the number of claims filed by prosecutors based on these facts, which allowed us to establish that the number of cases of prosecutors going to court to protect the labor rights of minors is relatively small. In addition, the article uses traditional methods of specific legal research, including formal legal analysis, which involves operating with scientific concepts, establishing links between them, classifying them, formulating new rules of conduct, and a method for analyzing legal situations, norms of law and concepts ^{[2, p. 97]}.

Activities of the Prosecutor's Office to protect the labor rights of minors

The modern Russian state recognizes the rights and freedoms of man and citizen as the highest value, and creates guarantees for their protection. The Prosecutor's Office of the Russian Federation plays a special human rights role in this area. Federal Law No. 2202-1 of January 17, 1992 "On the Prosecutor's Office of the Russian Federation" (hereinafter – the Law on the Prosecutor's Office) establishes norms establishing the human rights nature of the activities of the prosecutor's office.

Prosecutorial activity is one of the most effective human rights mechanisms, including in the field of protecting the labor rights of citizens under the age of majority. Thus, prosecutors carry out prosecutorial supervision over the observance of the labor rights of minors, ensure participation in the consideration of labor disputes by courts, initiate cases of administrative offenses against employers who violate labor legislation ^{[3, p. 99]}, carry out legal education of minors and youth ^{[4, p. 97]}, and carry out other types of prosecutorial activities. In addition, prosecutors "constantly monitor the provision of social, labor, and housing rights of children with disabilities, seeking to create conditions for their social adaptation and involvement in public life" ^{[5, p. 75]}.

Of course, the protection of citizens' labor rights is also within the competence of such a state control (supervision) body as the State Labor Inspectorate, whose activities the prosecutor has no right to substitute in accordance with the requirements of article 21 of the Law on the Prosecutor's Office. At the same time, one of the weighty grounds for conducting a prosecutor's supervision check is traditionally considered to be the receipt by the prosecutor of information about a violation of the law in conditions when there is no territorial (interdistrict) subdivision of the state control (supervision) body in the supervised prosecutor's office of the territory, whose competence includes conducting inspections for such violations. Given that an extremely small number of territorial (interdistrict) departments of the State Labor Inspectorate have been established on the territory of the Russian Federation, as a rule, it is the prosecutors of cities (districts) who turn out to be the main defender of citizens' labor rights.

The powers of the prosecutor and the general rules for the organization of prosecutorial activities in the field under consideration are established by the Law on the Prosecutor's Office. In addition, the "profile" orders of the Prosecutor General of the Russian Federation dated 12/13/2021 No. 744 "On the organization of prosecutorial supervision over the implementation of legislation on minors, observance of their rights and legitimate interests" and dated 02/05/2024 No. 98 "On the organization of prosecutorial supervision over the observance of citizens' labor rights" are devoted to detailing the specifics of the prosecutor's protection of the labor rights of minors.

Thus, by the above-mentioned orders, the prosecutor's supervision of the observance of the labor rights of socially vulnerable categories of citizens, including minors and youth, is recognized as a priority area of prosecutorial activity carried out by prosecutors on an ongoing basis ^{[6, p. 191]}.

It is impossible not to agree with O.I. Volnitskaya's assessment that in Russia minors are not just cheap, but quite often free labor, while being exploited in many areas, and sometimes illegal ^{[7, p. 13]}.

In 2023 alone, Russian prosecutors revealed more than 14.5 thousand violations of the labor rights of minors, in order to eliminate these violations, prosecutors made 3.9 thousand submissions, brought over 1.6 thousand protests, warned 348 officials about the inadmissibility of violations of the law. At the initiative of the prosecutors, 3,138 guilty persons were brought to disciplinary action, 969 to administrative responsibility. In order to protect the labor rights of minors, 374 applications were sent to the court ^[8]. Thus, the Prosecutor's Office has the authority to protect the labor rights of minors in both supervisory and non-supervisory activities. In addition, as evidenced by the practice of prosecutorial activity, prosecutors conduct proactive activities aimed at protecting the labor rights of minors at the initial stage of their occurrence.

Thus, within the framework of interdepartmental cooperation in order to organize the employment of minors, the employment service agencies and local prosecutors are working on issues of employment of adolescents in state and municipal educational organizations, as well as enterprises and organizations of various forms of ownership. Preliminary work is carried out with employers, the conditions of participation of the organization of employment of minors, the specifics of concluding employment contracts with teenagers are explained. Municipal administrations hold meetings of coordinating committees for employment promotion, meetings with the invitation of heads of settlements, heads of educational organizations, and other employers, which address issues of organizing temporary employment of minors aged 14 to 18 years. As a result, the number of minors aged 14 to 18 who are employed in their free time increases annually ^[9].

At the same time, during the supervisory support of measures for the employment of minors by prosecutors, numerous violations are revealed based on the results of inspections. To eliminate and prevent the detected violations, in order to protect the rights of minors to work, the entire range of means of prosecutorial response is used.

So, first of all, by measures of the prosecutor's response, facts of improper activity of authorities in the field of employment of minors are suppressed, while special attention is paid to ensuring the employment of children on preventive records living in families in a socially dangerous situation or in large families ^{[10, pp. 8-12]}. When conducting inspections of local self-government bodies, prosecutors compel to ensure proper financing of these activities. Supervising the employment centers of the population, prosecutors also monitor their availability of up-to-date information on quota jobs for minors, the referral by employment centers of minors who applied for employment in organizations for which job quotas are an obligation.

In addition, in order to protect the labor rights of minors, prosecutors also conduct inspections against employers.

Within the framework of supervisory activities, significant attention is paid to the legalization of labor relations with minors. When establishing cases of involving minors in labor without registration of labor relations, prosecutors in court establish the facts of labor relations, collect arrears of wages and mandatory payments. Prosecutors also identify and respond to the facts of concluding employment contracts with minors in the absence of consent from legal representatives and guardianship authorities.

Prosecutors are conducting checks on the implementation of regional legislation on job quotas for minors. At the same time, violations arising in the field of job quotas for minors are identified and suppressed, which can be expressed both in complete inaction of the employer and non-fulfillment of the quota obligation, and in unjustified refusal to work within the quota. Also, according to the requirements of the prosecutors, violations related to the failure of employers to provide information on quotas and filling jobs, and the lack of control over this by employment centers are eliminated. It should be noted that despite the measures taken by prosecutors, in many regions the issues of the actual employment of minors in quota jobs remain unresolved.

In the prosecutorial practice of protecting the labor rights of minors, a significant amount of violations identified are illegal terms of employment contracts and local regulations of employers regulating the organization of work of underage workers. Thus, when concluding employment contracts with teenagers, the terms of remuneration, labor function, etc. are not always regulated. There are examples of prosecutors protesting against local regulations that do not comply with the law, which establish internal labor regulations in organizations that employ minors under a quota, but do not reflect the procedure for terminating an employment contract with employees under the age of 18 at the initiative of the employer, a ban on sending them on business trips, the duration of annual paid leave for minors with the provision of a convenient time for them.

For example, according to the results of consideration of the protests of the prosecutor of the Kirovsky district of Irkutsk, appropriate changes have been made to the Rules of the Internal Labor Regulations of the Irkutsk Academic Drama Theater named after N.P. Okhlopkov and the GAUK IO Theater of the Young Spectator named after A. Vampilov.

Prosecutors also react by making representations to unscrupulous business leaders on the facts of the employment of minors in the absence of a preliminary medical examination, prevent cases of violation of the deadlines for payment of wages, involving minors in work on weekends and holidays, as well as at night.

Thus, the Ust-Ilimsky interdistrict prosecutor established the fact of non-payment of wages to a minor. After his dismissal, no settlement was made with him, and wages were not paid in full. At the same time, an employment contract was not concluded. According to the results of the prosecutor's intervention, the child was fully paid the salary arrears in the amount of 4,800 rubles.

Bringing to justice
according to the requirements of the prosecutors

For each fact of violations of the requirements of labor legislation detected by prosecutors in the actions of employers, the guilty officials are brought to disciplinary and administrative responsibility.

It seems that a possible way to solve problems related to non–compliance with the labor rights of persons under the age of majority is to establish in article 5.27 of the Code of Administrative Offenses of the Russian Federation a special composition of an administrative offense providing for stricter administrative liability of the employer for violation of the labor rights of minors. As a result of such a change in the law, prosecutors would have in their arsenal another effective way to protect the labor rights of teenagers and bring unscrupulous employers to administrative responsibility.

The main reasons for the establishment of stricter administrative responsibility are the following: 1 – cases of violation of the labor rights of minors must, in principle, be eliminated in full, since persons under the age of 18 are the most vulnerable, dependent subjects of public relations; 2 – violation of the labor rights of a minor may affect the further work of such a person, in particular 3 – the initial bringing of the employer to administrative responsibility for violation of the labor rights of a minor should discourage the desire to allow similar violations in the future, especially in cases where the minor continues his work with the same employer.

Thus, we believe that the introduction of additional administrative responsibility for the commission of such an offense would have a positive impact on the state of legality in the field of legal relations in general, since children are the most important priority of the state policy of the Russian Federation ^{[11, p. 16]}

Problems of prosecutorial activity
to protect the labor rights of minors

During the study, the method of statistical analysis of data on the number of violations of the labor rights of minors identified by prosecutors was applied, the data obtained were compared with information on the number of claims filed by prosecutors based on these facts, which allowed us to establish that the number of cases of prosecutors going to court to protect the labor rights of minors is relatively small. We believe this is partly due to the erroneous interpretation by individual prosecutors of Article 45 of the CPC of the Russian Federation, who believe that prosecutors can apply to protect the labor rights of minors only if there is a statement from such a person. At the same time, law enforcement practice shows that it is often underage workers who do not even assume that their labor rights are being violated, they do not know that one of the most effective ways to restore violated labor rights is to contact the prosecutor's office of the Russian Federation. It also affects the fact that citizens under the age of 18 often treat violations of their labor rights indifferently until such violations lead to more tangible consequences for them, such as illegal deprivation of wages or dismissal. It should be noted that violations of labor rights are generally characterized by their latency, and therefore the creation of additional barriers for the prosecutor to identify and eliminate such violations seems completely unjustified. In particular, we are talking about cases when the prosecutor reveals that a minor works for an employer without proper registration, but the employment relationship with him arose on the basis of an actual assumption (Article 67 of the Labor Code of the Russian Federation), therefore, the minor also had labor rights from the beginning of his employment with the knowledge or on behalf of the employer. At the same time, sometimes a minor does not want to write a statement addressed to the prosecutor about a violation of his labor rights out of fear of the employer or believing that such a violation does not affect anything. However, the absence of such a statement does not and cannot mean that the prosecutor should be inactive in this regard, since the protection of the rights (including labor rights) of a minor differs significantly from the protection of the rights of an adult, fully capable person.

The fact is that, due to the requirements of Article 37 of the CPC of the Russian Federation, civil procedural capacity arises in full only for citizens who have reached the age of 18 ^{[12, p. 81]}. Thus, a minor cannot go to court on his own without the assistance of a legal representative, and in cases where the legal representative takes a passive position or intentionally does not want to protect the labor rights of a minor, the only person who has the right to go to court to protect the labor rights of a minor citizen, in accordance with Article 45 of the CPC of the Russian Federation, is precisely The prosecutor.

It should be noted that employers' involvement in the work of minors is often accompanied by violations such as failure to conduct mandatory medical examinations in relation to them, a priori the establishment of a probation period, which is unacceptable in accordance with the law, often accompanied by a reduction in wages for the period of probation, the involvement of minors in hard, harmful or dangerous work, the use of child labor in areas where it is it is unacceptable (gambling, work in night cabarets and clubs, production, transportation and trade of alcoholic beverages, tobacco products, erotic materials) and so on. Of course, when identifying such cases, the prosecutor cannot and should not wait for a request for help from a minor, and therefore is obliged to proactively defend the interests of the child ^{[13, p. 200]}.

At the same time, it is often the appeal of an employee to the prosecutor's office with a complaint about a violation of labor rights that allows the most effective and prompt protection of the violated right. This is because the prosecutor has the right to independently verify the received appeal, apply prosecutorial response measures, demanding the elimination of the violation that has arisen, but, in addition, the prosecutor has the right, on the basis of Article 45 of the CPC of the Russian Federation, to go to court. By participating in the consideration of a labor dispute by the court, the prosecutor acts professionally and impartially, based on the requirements of the law and emerging judicial practice, defends the interests of a citizen free of charge. It should also be noted that at present the State Labor Inspectorate does not have the authority to apply to the court to protect the labor rights of citizens.

Thus, we believe that at present there is a need to supplement with new requirements a number of orders of the Prosecutor General of the Russian Federation, namely from 12/13/2021 No. 744 "On the organization of prosecutorial supervision over the implementation of legislation on minors, observance of their rights and legitimate interests"; from 02/05/2024 No. 98 "On the organization of prosecutorial supervision over the observance of citizens' labor rights"; dated 11.01.2021 No. 2 "On ensuring the participation of prosecutors in civil and administrative proceedings". It is proposed to supplement these orders with a provision stating that if the prosecutor identifies significant violations of the labor rights of minors requiring recourse to court, the prosecutor should file a statement of claim in the interests of the minor in all cases, regardless of whether there is an appeal from him to the prosecutor's office.

Conclusion

Summing up the scientific research carried out while writing this article, it should be noted that currently the prosecutor's activity to protect the labor rights of minors is characterized by extensive practice, a variety of forms of prosecutorial response to identified violations, and systematic impact on persons who violated the requirements of labor legislation.

At the same time, the text of the work pays special attention to the need to reorient the existing prosecutorial practice to protect the labor rights of minors in court. A scientifically novel proposal has been formulated on the need to amend a number of organizational and administrative documents of the Prosecutor General of the Russian Federation in order to clarify the existence, in accordance with Article 45 of the CPC of the Russian Federation, of legitimate grounds for the prosecutor to apply to the court to protect the labor rights of a minor, regardless of whether there is an appeal from him to the prosecutor's office.

In addition, the article formulates proposals for the establishment of special administrative responsibility for violation of the labor rights of minors.