Changes to the employment contract are allowed by. Changing the terms of the employment contract determined by the parties for reasons related to changes in the organizational or technological working conditions

The change employment contract - change of its conditions, determined by agreement of the parties; change by the tenant as a result of his reorganization, change of owner, his property, in which labor Relations with the employee continue only with his consent or stop.

The basis for changing an employment contract is usually an agreement - a bilateral expression of the will of the parties, except as otherwise provided by law.

Types (forms of change):

• transfer - a specific assignment by the employer to an employee of work in a different profession, specialty, qualification, position (except for changing the name) compared to those stipulated in the employment contract, assigning work to another employer or in another locality, except for a business trip.
• relocation - an assignment by the employer to an employee of a previous job at a new workplace, both in the same and in a different structural unit (if it is not isolated) while maintaining the working conditions provided for by the employment contract;

• changes in essential working conditions.

Translation is not any change in an employment contract, but its most important conditions:

1. Labor function

2. Place of work (that is, a specific employer) - other than that specified in the employment contract legal or individual, to whom the legislation has granted the right to conclude or terminate an employment contract, as well as another separate structural unit.

3. Another locality - another locality.

Transfer differs from business trip:

- Various purposes and essence. The main purpose and essence of a business trip is the employee's performance of a service task within the framework of his job function outside the place of his permanent work. Translation is the fulfillment of a previous or new job function in full.

- Business trip cannot exceed 30 calendar days. The translation can be temporary or permanent and not limited by the time frame.

Transfers can be classified on various grounds:

1. Duration:

• permanent - without preserving the previous place of work and only with the consent of the employee;
• temporary - can be carried out at the initiative of an employee or employer. Not allowed even with the consent of the employee, if there are contraindications for health reasons. Temporary transfer without the consent of the employee is possible in the following cases: assignment of work in the same area; availability of production necessity for the employer; work should not be contraindicated for health reasons; for a period not exceeding 1 month.

2. Place of transfer:

• at the same enterprise;
• at another enterprise;
• from the same employer, but in a different location.

3. In whose interests:

Translation is allowed without the employee's consent:

Due to production needs - the need for this employer, prevention of a disaster, industrial accident, elimination of their consequences, consequences natural Disasters, preventing accident, downtime, destruction, or damage to property, to replace an absent employee. In these cases, the employer has the right to transfer the employee, without his consent, to work not stipulated by the employment contract, that is, in another profession, specialty, qualification, position, to work with another employer.

2. In cases of downtime. Downtime - no more than 6 months absence of work due to production or economic nature... It is carried out taking into account the profession, specialty, qualifications, position for the entire downtime. If the employee is transferred to another employer, the period should not exceed one month. The average earnings remain at the previous place of work. An employee who refuses to transfer is not punished, and he is left with 2/3 of the tariff rate.

The movement is carried out within the specialty, qualification and position stipulated by the employment contract, that is, this is work according to the previous labor function.

Displacement can be temporary or permanent and can be expressed in the following forms: within one structural unitif it is in the same area as the previous one; getting work on another mechanism or unit.

The transfer does not require the consent of the employee. But it can be produced only if there are production, organizational, economic reasons. Moving is not allowed if new workplace contraindicated for health reasons.

Change of employment contract

Relocation is formalized by order or order of the employer.

Differences between translation and translation:

- When transferring, the labor function and (or) place of work changes, when moving only the workplace.

- Relocation does not require employee consent.

- They are different in terms of time and payment.

Changes in essential working conditions... Essential working conditions include the systems and amounts of remuneration, guarantees, mode of work, category, name of the profession, position, establishment or cancellation of part-time work, combination of profession, establishment, change of labor standards, the amount of material liability and more. In accordance with decree No. 29 of July 26, 1999 "On additional measures to improve labor relations, strengthen labor and executive discipline," added the transition to a contractual form of employment with an employee with whom an employment contract was concluded for an indefinite period. Changes in essential working conditions must be justified by organizational, economic and production reasons. If the above-mentioned essential working conditions change, the employee continues to work in the same specialty, qualification or position specified in the employment contract, that is, for the same job function. The employer is obliged to notify the employee about changes in essential working conditions in writing not later than one month in advance. If the employee refuses to continue working, the employment contract with him is terminated. A change in essential working conditions is formalized by an order or by an order of the employer.

SEE MORE:

Labor law

Article 74. Changing the terms of the employment contract determined by the parties for reasons related to changes in the organizational or technological working conditions

(as amended by Federal Law of 30.06.2006 N 90-FZ)

(see text in previous

In the case when, for reasons related to changes in organizational or technological working conditions (changes in production techniques and technologies, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, their change is allowed on the initiative of the employer, with the exception of changes in the employee's labor function.

The employer is obliged to notify the employee of the upcoming changes to the terms of the employment contract, as determined by the parties, as well as the reasons that caused the need for such changes. writing not later than two months, unless otherwise provided herein.

If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job that the employer has (as vacant post or a job corresponding to the qualifications of the employee and a vacant lower position or underpaid work), which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.

With absence said work or the refusal of the employee from the offered work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in the first part of this article may lead to mass dismissal of employees, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code for the adoption of local regulations , introduce a part-time (shift) and (or) incomplete working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation.

The cancellation of the part-time (shift) and (or) part-time working week before the period for which they were established is made by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes to the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.

Art. 74 of the Labor Code of the Russian Federation. Changing the terms of the employment contract determined by the parties for reasons related to changes in the organizational or technological working conditions

The most important document of the employee, securing his rights, obligations and guarantees, is the employment contract. In this document, as in any other agreement, the law provides for the conditions, without indicating which, the agreement is considered invalid.

Features of changing the employment contract

Such conditions are usually called essential. In view of their extreme importance for the employee, the legislator has provided for a special procedure for changing the essential conditions of the employment contract.

• place and date of commencement of work;
• work and rest regime;
• terms of remuneration;

Such a ground for dismissing an employee is extremely convenient for the employer, since it does not provide for mandatory payments in the form of compensation for dismissal due to redundancy. Often, dishonest employers try to disguise the downsizing as changes in essential working conditions. In this case, the employee may go to court with a demand to change the basis for dismissal and pay the compensation due to him.

In court, the employer is obliged to submit written evidence confirming that the reason for the change in essential working conditions was precisely the change in the organizational or technological working conditions. Organizational change refers to the creation or abolition of branches. Under technological - change technical equipment enterprises to a newer one that requires more workers highly qualified... In recent years, courts have quite often ruled in favor of laid-off workers when resolving such disputes.

Read also - how to collect wage arrears?

Change of essential terms of the employment contract

⇐ PreviousPage 5 of 12Next ⇒

The most important document of the employee, securing his rights, obligations and guarantees, is the employment contract. In this document, as in any other agreement, the law provides for the conditions, without indicating which, the agreement is considered invalid. Such conditions are usually called essential. In view of their extreme importance for the employee, the legislator has provided for a special procedure for changing the essential conditions of the employment contract.

An exhaustive list of essential conditions is enshrined in article 57 of the Labor Code of the Russian Federation. These include:

• place and date of commencement of work;
• name of the profession, specialty;
• the position for which the employee is applying;
• the rights and obligations of the employee and the employer;
• characteristics of working conditions (mandatory indication of harmful and hazardous conditions labor, if any);
• work and rest regime;
• terms of remuneration;
• types and conditions of social insurance, if it is directly related to work.

The employer is allowed to change the above working conditions only for reasons related to changes in the organizational or technological working conditions. The employee must be notified in writing about changes in essential conditions at least 2 months before the onset of these changes. This rule is especially important for the employer, since the dismissal of an employee in connection with a change in essential working conditions is possible only after the expiration of the specified period. If the employee is dismissed before the expiration of two months from the date of notification, the court can force the employer to reimburse the wages for this period.

Changes to the essential terms of the employment contract are not related to the consent of the employee. Therefore, within 2 months the employee must decide whether he is ready to continue working on new conditions or not.

At the same time, if the employee refuses to accept the new conditions, according to the law, the employer must provide him with another vacant position corresponding to the qualifications of the employee. But, as a rule, such a position is not available, and the employee leaves in connection with the refusal to continue working when the essential conditions of the employment contract change.

In court, the employer is obliged to submit written evidence confirming that the reason for the change in essential working conditions was precisely the change in the organizational or technological working conditions. Organizational change refers to the creation or abolition of branches. Under technological - the change in the technical equipment of the enterprise to a newer one, requiring workers of higher qualifications. In recent years, courts have quite often ruled in favor of laid-off workers when resolving such disputes.

Transfer to another permanent job and moving

Transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality together with employer. Changes in other conditions determined by the employment contract (for example, working hours, remuneration), is not a transfer to another job.

Transfer to another job is possible only with the written consent of the employee... If the transfer to another permanent or temporary job with the same employer is carried out without the written consent of the employee, but he started doing other work, such a translation can be considered legal... However, the employee does other work does not release the employer from the obligation obtain from the employee a written confirmation of such consent to transfer.

Transfer to another permanent job or temporary transfer to another job with the same employer, as well as transfer to a permanent job in another locality together with the employer drawn up by order (order) of the employer ... The corresponding record of the transfer is entered in the work book.

When transferring to work in another locality, employees are paid appropriate compensation: employee travel cost, baggage cost, etc. Under another terrain it should be understood as the area outside the administrative-territorial boundaries of the corresponding settlement. Transfer to work from one settlement to another, even within the same administrative district, will be considered as a transfer to another locality regardless of the presence of a bus or other regular service between these points.

Refusal of an employee to transfer to another locality together with the employer is the basis for terminating the employment contract with him.

Transfer to work with another employer can be carried out at the request of the employee , stated in writing, or with his written consent, if the initiative in translation comes from the employer. Transfer to a permanent job with another employer entails a change to one side of the employment contract, therefore, it is considered by the legislator as an independent basis for terminating an employment contract. In the employee's workbook, records are made about dismissal and employment, indicating the procedure in which dismissal in connection with the transfer is carried out - at the request of the employee or with his consent.

In some cases the employer has an obligation transfer the employee with his consent to another job. In cases where the work to which the employee is transferred according to the medical report, being underpaid, for the employee his previous average earnings remain during the month from the date of transfer, and upon transfer due to work injury, occupational disease or any other damage to health related to work - until the establishment of permanent disability or until the employee recovers.

If the employee refuses to transfer to another job in accordance with the medical certificate, as well as if the employer does not have a recommended job, the employment contract with the employee is terminated

From transferring an employee to another job should be distinguished moving from the same employer to another workplace, to another structural unit located in the same area, assignment of work on another mechanism or unit.

Such movement does not require employee consentif this does not entail changes by the parties to the terms of the employment contract.

Change of workplace or structural unit can be recognized as displacement only if, when concluding an employment contract, this is a specific workplace (mechanism, unit) or structural unit not specified and not provided for in the employment contract... If a specific workplace (mechanism, unit) or structural unit is indicated in the employment contract, then it is its obligatory condition and can be changed only with the written consent of the employee.Under structural unit of the organization should be understood as branches, representative offices, and departments, workshops, sections, etc.

Temporary transfers

Temporary transfersfor another job can also be divided into separate

1) requiring the written consent of the employee.

What is the procedure for changing the employment contract (basis)?

The employee and the employer have the right to conclude a temporary transfer agreement. The term for such a transfer is determined by agreement between the employee and authorized representative employer and must not exceed one year (part 1 of article 72.2 of the Labor Code of the Russian Federation). This transfer can be carried out to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained.

A temporary transfer record can be entered into the labor

the employee's book on his application;

2) not requiring the consent of the employee. Based on Art. 72.2 of the Labor Code of the Russian Federation, the employer has the right to transfer the employee for a period of up to one month to work unconditional by the employment contract in the same organization with wages for the work performed, but not lower than the average earnings for the previous job. Such a translation is allowed to prevent a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic or epizootic

⇐ Previous12345678910Next ⇒

An employment contract is a formal written agreement between an employer and an employee that establishes certain mutual rights and obligations. Any transformations, changes and additions are possible exclusively in writing. Otherwise, they have no effect.

Attention

The Labor Code of the Russian Federation determines the procedure for changing an employment contract. Any innovations must be carried out in strict accordance with the interests of the employee. Failure to comply with this law entails penalties. Both the employer and the employee must accurately represent and comply with the procedure for editing the agreement concluded between them. Of course, this procedure has its own subtleties and features that must be observed.

Labor Code on the procedure for changing the employment contract

The procedure for carrying out any procedures with a document concluded between an employee and an employer is assigned a separate chapter of the Labor Code - Chapter 12. Initially, the Labor Code establishes that the change of any provisions in the employment contract is allowed only by agreement of both parties, with the exception of some cases. According to article 74, if it is necessary to edit in connection with the improvement of working conditions, the employer has the right to make amendments without the consent of the employee, notifying him of this 2 months in advance. However, the law clearly states:

• The employer cannot unilaterally edit the clauses concerning the performance of the employee's labor functions;
• The employer must offer all employees a reduced working time regime if, after the transformations, their mass layoffs began. The duration of the regime is no more than 6 months.

The management of the organization must justify the need to edit the provisions of the employment contract. Also, the employee's consent is not required for items related to his temporary relocation to another position or to another unit for a period of up to 1 month, if this is due to extraordinary circumstances or the need to prevent disasters and accidents. Demotion in in this case requires the consent of the employee.

When can an employment contract be changed?

Chapter 12 of the Labor Code of the Russian Federation, dedicated to all changes in the employment contract, establishes a certain list of circumstances, in the event of which you can resort to editing its provisions:

1. Transfer - sending an employee to another division of the organization or changing the type of his work at the initiative of the employer. Such amendments entail a change in job functions and other conditions that need to be reflected. Transfer is possible only with the consent of the transferred employee. Translation should not be confused with relocation. Relocation is the transfer of an employee to another job in the same organization without a change in functions and innovations in the regulations, and it does not require consent of this employee... It is extremely important to understand the differences between these concepts;
2. Change of any items previously agreed by the employee and the manager due to a change in working conditions;
3. Change of the owner of the organization in which the employee is listed, its reorganization or transformation of the type of institution;
4. Suspension of an employee from duty.

The legislator determines that the parties have the right to change any previously agreed provisions. Most often, the term of the employment contract, the name of the organization (in the event of a change), the employee's salary, the position held, the legal address of the employer, etc. change.

Change order

Both parties to the employment relationship will certainly have a question about the form of the order to edit the clauses of the employment contract. For of this document the law does not provide for a special standardized design. The order is drawn up in free form using the company letterhead.

The header of the document must contain the full name of the organization and its registration codes - KPP, TIN and OGRN. The word "Order" is put just below, indicating its number. Under this line, the name of the order is put down, for example - "On amendments to the terms of the labor contract by A. Ivanova." The next line contains the date.

After the registration of the header, the introductory part of the document is written, in a specific form containing the basis that caused the amendments. After indicating the grounds, the word "I order" is put, and the following data is written under it:

1. Basis for amending the employment contract. Most often, it is a previously concluded agreement between the employee and the employer, and therefore, it is enough just to put down its details;
2. Requisites;
3. The text itself with an indication of the part in which it was introduced.

After these operations, it remains only to establish and display the start date of the order and appoint responsible persons. The order to change the labor agreement must be signed by the manager, responsible persons and the employee himself, the contract with whom was changed.

Based on the above, we can conclude that the order to change the content will look like this:

As you can see, the order to change the employment contract is as simple as possible in execution and does not require compliance with the established template.

Step-by-step instructions for amending an employment contract by an employer

There is a certain procedure for changing the employment contract. A kind of algorithm is formed:

1. If the employer is the initiator, he notifies the employee about the desire to make the necessary changes. To this end, the employer must send a referral to the employee in two copies (one copy, after being approved by the employee, goes to the employer, the second remains with the employee). If the employee gives his consent to the editing of the employment contract, he confirms this in writing. This confirmation is the basis for starting the procedure for drawing up and accepting an agreement;
2. An additional agreement is generated in duplicate. It must contain any proposed amendments;
3. The drawn up agreement is registered in accordance with the norms established in the organization;
4. One of the copies is given to the employee, while this fact must be certified by the employee's signature in the employer's copy;
5. A decree is issued containing the fact of amending the content of the concluded document. Like the agreement, this document must be registered;
6. The parties get acquainted with the order and confirm it by affixing signatures.

This procedure for changing the employment contract is established by law and cannot be changed.

Change agreement

A correctly drawn up agreement on editing the provisions of the employment contract concluded between the parties is an extremely important component. The law states that any amendments to the agreement between the employee and the management must be recorded in an additional document. Such an agreement is the guarantor of the existence of an agreement between the parties to edit the terms. It should be borne in mind that even with a unilateral change in the provisions of the contract between the employee and the manager, it is necessary to draw up this document.

Note

The agreement should correctly reflect the essence of the changes being made. The reasons for the changes in the employment contract do not need to be included. The agreement comes into force from the moment of its signing or after a certain period of time. The effect of its provisions can be extended to the past tense. The agreement is concluded in various cases - when changing the place of work, changing job functions, salary and related payments, working hours and other things.

A sample agreement to amend the employment contract is shown in the image below:

It must be remembered that any amendments must be accompanied by the preparation of such a document.

Employee notification

As discussed earlier, management can, without discussion, own initiative amend the employment contract. The law says that such changes are possible only with a change in various kinds of working conditions at the enterprise. The main reason for the unilateral change of various paragraphs of this document is the inviolability of the employee's labor function (duties). In addition, the need to introduce various amendments must necessarily be justified by the organization's management with the provision of appropriate evidence.

The management is obliged to notify the employee about the proposed changes and the reasons for their introduction two months in advance. The notice must be in writing and contain the following inherent data:

• Reasons for the amendment.
• Offer the employee two options - consent or rejection.
• Proposing another vacancy that the manager has. It must be suitable for the employee.

As with the revision order, the legislator does not provide a formal notification form. Accordingly, the employer can draw up a form at his own discretion, but not contrary to the norms of the Labor Code of the Russian Federation (namely, Art. 74). Let's provide a sample of such a notice:

As you can see, the notification contains the reasons for changing the clauses, the changed clauses, the receipt and the employee's consent or disagreement.

Additional Information

In addition to everything, the legislation obliges the manager to offer the employee other available vacancies when he does not give his consent to the amendments. If such options are not available, or if the employee is not ready to accept any of them, the contract between the parties terminates on the basis of the provisions of the Labor Code.

It is possible that the amendments introduced may lead to the dismissal of a large number of employees. In this case, the organization's management may resort to setting a different operating mode - part-time. The duration of this innovation should not exceed 6 months. Upon refusal to work on incomplete day the agreement concluded between the parties is also subject to termination.

And the last, no less important, clarification is that any transformations should be carried out taking into account the preservation of the position of the employee at the same level.

The procedure for changing the terms of an employment contract by an employee

Situations often arise when the employee himself is the initiator of editing the clauses of the employment contract between the manager and the employee. In this case, he must submit an application containing a petition for amendments with a description of the reasons. The application is registered, after which the employee only has to wait for an official response from the employer.

In case of consent, the further procedure is no different from the previously described one. It still consists of several points:

1. Generation of an agreement between the parties on amendments;
2. Registration of an agreement according to the internal norms of the organization;
3. Affixing signatures and transferring copies of the agreement to the parties;
4. Issuance of an order on editing an employment contract and its registration;
5. Familiarization of the employee with the order and affixing signatures.

This procedure is officially established and cannot be violated.

Refusal to amend

As mentioned earlier, management has the right to personally change positions in connection with changes in working conditions. You just need to send a notification to the employee. But what happens if the employee refuses to accept the proposed changes?

It was described above that in such a situation, the organization's management is obliged to offer the employee all the available options for changing the vacancy. If they are absent or if the employee refuses to accept them, the employer receives the full right to dismiss the hired citizen and terminate all labor relations with him. This is evidenced by the Labor Code of the Russian Federation (the employee's disagreement to work after the change in regulations leads to the termination of all relations between the parties).

Nuances

Wishing to unilaterally make amendments, employers are often confused. This leads to the recognition of the adopted innovations in the employment contract as illegal. There are many editing situations in order to optimize the work:

• Transfer of an employee to another office or division;
• Adding new responsibilities;
• Change of work schedule;
• Change of operating mode;
• Employee salary adjustments and more.

And even despite the fact that the legislation clearly regulates this issue, many employers are confused not only in the procedure for adopting amendments, but also in what can be considered a change in the contract and what is not.

It is important to understand that all the information to be recorded is contained in article 57 of the Labor Code of the Russian Federation. Their editing will entail changes and the concluded agreement. It remains to look only at the obligatory nature of the amended paragraph - if the article states that it is mandatory, then amendments must be made. It may also happen that this provision is missing from the article. In this case, it is necessary to check whether it is contained in the contract. If it is, you still have to edit it.

In other cases, the fixation of innovations is optional. For example, a change in the order of subordination of an employee or a change in the location of the workplace does not entail changes in the content of the employment contract.

In addition, the employer often makes the following mistakes:

• Doesn't send a notification to an employee;
• Sends a notification, but does not indicate the reason for the change;
• He arbitrarily calculates the period of notification of the employee (according to the law - 2 months);
• Neglect to offer other vacancies if the employee refuses to change;
• Does not follow the order of making transformations.

Almost all the errors discussed above lead to the recognition of the changes made as invalid, and the dismissal of the employee due to the refusal is recognized as illegal. That is why strict adherence to the procedure is extremely important.

The employer should take into account that when trial labor laws and courts put the employee's interests ahead of the employer's interests. In this regard, it is necessary to be as careful and responsible as possible to the procedure for editing such important document... Subject to all of the above nuances and in the absence of errors, the procedure for improving or worsening conditions will take place without any undesirable consequences for the employer or employee.

Labor legislation clearly describes all aspects of the relationship between employer and employee. Amendments to the agreement concluded between them are by no means an exception. For any manipulations, you must strictly follow all the instructions of the Labor Code of the Russian Federation. This contributes to the correct conduct of all procedures and the absence of sanctions for violation of the rules for their conduct. Following step by step instructions, timely registration of all required documents and the existence of agreement between the employee and the management of the organization is the key to the success of any operation regulated by labor laws.

As already noted, the basis for changing the content of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation is a change in organizational or technological working conditions ((for example, management structure, organization of workplaces, technological processes, when upgrading and replacing equipment, etc.).

In accordance with Part 1 of Art. 74, the employer has the right, in connection with changes in the organizational or technological working conditions in the organization, to unilaterally change the terms of the employment contract, determined by the parties upon its conclusion, for with the exception of changes in the employee's labor function.

These changes must be objective. In this connection, the employer is obliged to provide evidence confirming that such a change was the result of changes in the organization of work or in the organization of production (for example, changes in technology and production technology, improvement of workplaces based on their certification, structural reorganization of production) and did not worsen the situation employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the change, at the initiative of the employer, of the terms of the employment contract, stipulated by the parties, cannot be recognized as legal ( clause 21 of the Resolution of the Plenum of the RF Armed Forces. No. 2 ).

The employer is obliged to notify the employee in advance, not later than two months before their introduction, about the forthcoming change of the terms of the employment contract determined by the parties, as well as about the reasons that caused the need for such changes. At the same time, the Labor Code of the Russian Federation or other federal laws may provide for other periods of warning about changes in the terms of the employment contract. For example, if the employer is an individual, the employee must be warned 14 calendar days in advance (Article 306 of the Labor Code of the Russian Federation); an employee working in a religious organization for 7 calendar days (Art. 344 of the Labor Code of the Russian Federation).

The legislator does not specify the procedure for notifying an employee about changes in the terms of an employment contract; therefore, in practice, compliance with the written form of such a warning can be ensured in two ways:

By familiarizing the relevant employees with the order of the head of the organization or other competent person on the transition to new working conditions;

By personal written notification of each employee whose terms of the employment contract will be affected by the changes introduced.

As follows from this article, the employer is obliged by law to offer the employee the vacancies that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements or labor contract. At the same time, the employer has the right to offer the released employees any vacancy, including a lower position or lower-paid work, which an employee can perform in accordance with his qualifications and health status, regardless of its location.

At the same time, the legislator does not establish the time frame during which the employer must offer the employee another job in the organization, as well as the specific form in which such an offer can be made. As one of the options for solving the problem, it is possible to recommend, together with the order on the upcoming change of certain conditions of the employment contract, present the employee as an attachment to the order a list of all vacancies available in the organization. The employee, having familiarized himself with the order and the list of works offered to him on receipt, at the same time can express his will, agreeing to the transfer to any job corresponding to his qualifications and state of health, or refusing such a transfer.

If the employer does not have an appropriate job, as well as if the employee refuses to offer him another job, the employment contract with him on this basis is terminated (clause 7 of article 77 of the Labor Code of the Russian Federation). Upon dismissal of employees this basis they are paid severance pay in the amount of two-week average earnings (part 3 of article 178 of the Labor Code of the Russian Federation).

A change in the organizational or technological working conditions can lead to a change in the terms of the employment contract not for one employee, but for the whole group (mass dismissal). In accordance with " Regulations on the organization of work to promote employment in conditions of mass release ", approved By Decree of the Council of Ministers of the Russian Federation of February 5, 1993 N 99, the main criteria for mass layoffs are indicators of the number of dismissed workers in connection with the liquidation of an organization or a reduction in the number or staff of employees for a certain calendar period.

Currently, the criteria for mass dismissal are determined in sectoral and (or) territorial agreements, Part 1 of Art. 82 of the Labor Code, therefore, the rules provided for by this Regulation apply only in the absence of relevant rules in the agreements.

One of the options for solving the problems arising in connection with this is formulated by the legislator in Part 5 of Art. 74 of the Labor Code of the Russian Federation - an employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time regime for up to six months.

The opinion of the elected body of the primary trade union organization is taken into account in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations.

Employees must be notified by the employer in writing about the introduction of part-time work in these cases, as well as about changes in other conditions provided for by the employment contract, no later than two months before its introduction. In addition, when introducing a part-time (shift) and (or) part-time working week, he is obliged to notify the employment services in writing within three working days after the decision to carry out the relevant measures is taken. (paragraph 1, part 2, article 25 of the Employment Law ).

It should be borne in mind that the rules of ch.ch. 5 and 6 Art. 74 of the Labor Code of the Russian Federation are not universal:

a) their application is a right, but not an obligation of the employer;

b) they are used in cases of mass layoff of workers;

c) they are temporary in nature, since they are applied “in order to preserve jobs” (ie, it is assumed that the circumstances that led to the reduction in working hours are transient and after their elimination, the workers will be set to work hours stipulated by the employment contract) ...

In the absence of at least one of the formulated conditions, these rules do not apply and the released workers may be dismissed according to the rules of paragraph 2 of Art. 81 TC with the provision of appropriate guarantees and compensations.

It should be noted here that Art. 74 of the Labor Code of the Russian Federation in terms of establishing part-time work is in conflict with the ILO Convention No. 175 "On part-time work" 1994. (not ratified by the Russian Federation), which obliges states to ensure that the transition to incomplete working time and vice versa. In turn, the recommendation of the ILO №182 "On part-time work" 1994. contains a rule that the refusal of an employee to switch from full-time work to part-time work cannot serve as a basis for his dismissal.

8.3) Labor relations when changing the owner of the organization's property, changing the jurisdiction of the organization, its reorganization, changing the type of state or municipal institution.

Based on the provisions of the Labor Code of the Russian Federation, changes in the employment contract may also apply to its subject - the employer (Article 75 of the Labor Code of the Russian Federation).

Considering this article, it is necessary, first of all, to define the concept of "change of ownership of the organization's property." Article 75 of the Labor Code does not disclose its content, and civil legislation that determines the legal regime of activity legal entities, the rules for their liquidation and reorganization, does not use a similar legal category.

In this regard, in Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2it is clarified that the change of the owner of the organization's property takes place in the following cases:

a) transition state enterprise from property Russian Federation in the ownership of its subject, and vice versa;

b) the transition of a state enterprise to municipal ownership;

c) transition municipal enterprise the property of the state;

d) privatization of a state or municipal enterprise;

e) change of the owner of the property of the institution, if the activity of the latter is financed by the owner ( p. 32 ).

The Plenum also draws attention to the fact that a change in the composition of participants (shareholders) cannot serve as a basis for terminating an employment contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property business partnership or the company, the partnership itself or the company remains, and the owner of the property does not change ( p. 32 ).

In accordance with Part 1 of Art. 75 of the Labor Code of the Russian Federation in connection with a change in the owner of the organization's property, labor relations, by decision of the new owner, can be terminated only with the head of the organization, his deputies and the chief accountant of the organization. At the same time, the new owner has the right to make a decision to terminate labor relations with the named employees within three months from the date of his ownership of the property of the organization. In accordance with Art. 223 of the Civil Code, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or contract. However, in cases where the alienation of property is subject to state registration, the acquirer's right of ownership arises from the moment of such registration, unless otherwise provided by law. The ownership of the enterprise passes to the buyer from the moment of state registration of this right (Article 564 of the Civil Code).

Ownership and other property rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the Unified State Register of Rights to real estate and transactions with him by the bodies carrying out state registration rights to real estate and transactions with it. The right of ownership, the right of economic management and the right of operational management are subject to registration (Article 131 of the Civil Code).

Labor relations with all other employees continue and are subject to termination only if the employee refuses to continue working in connection with a change in the owner of the organization's property. In this case, the employee has the right to quit according to on their own (Article 80 of the Labor Code of the Russian Federation), and in the absence of a corresponding written application from the employee, the employment contract with him is terminated by virtue of clause 6 of Art. 77 of the Labor Code of the Russian Federation. In this case, the employee's refusal to continue working must be expressed in writing.

In contrast to the situation related to the change of ownership of the organization's property, the rules of Part 5 of this article apply to all employees of the organization, incl. and to her head, his deputies and the chief accountant. In accordance with it, a change in the jurisdiction of an organization, its reorganization, a change in the type of state or municipal institution cannot be the basis for terminating employment contracts with employees of the organization. In this case, any written consent of the employee to continue the employment relationship is not required in this case. IN work books employees in this case, a record is made about the new name of the organization ( p. 3.2 Instructions for filling out work books).

If an employee does not agree to continue working in a reorganized or changed subordination organization, he is obliged to express such disagreement (refusal to continue work) in writing. In this case, the employment contract with him is terminated in accordance with paragraph 6 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work in connection with a change in the jurisdiction (subordination) of the organization or its reorganizations).

Labor Code of the Russian Federation.

Changes to the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement on changing the terms of the employment contract determined by the parties is concluded in writing.

Changing the terms of the employment contract for reasons related to changes in the organizational or technological working conditions

In the case when, for reasons related to changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they may be changed at the initiative of the employer, except for a change in the employee's labor function (Article 74 of the Labor Code of the Russian Federation).

The employee must be notified of the introduction of these changes by the employer in writing. no later than 2 months before their introductionunless otherwise provided by the Labor Code of the Russian Federation or otherwise federal law... If the employee does not agree to continue working in the new conditions, the employer is obliged to offer him in writing:

• • other work available in the organization, corresponding to his qualifications and state of health;
  • in the absence of such work - a vacant lower position or lower-paid work that the employee can perform taking into account his qualifications and health.

The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.

In the event that the circumstances indicated above may lead to mass dismissal of workers, the employer, in order to preserve jobs, has, taking into account the opinion of the elected trade union body of this organization, to introduce a regime part-time work for up to 6 months.

Translation and movement concept

Employee transfer

Transfer to another job :

1. 1. permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer;
   2. transfer to work in another locality together with the employer.

Transfer to another job is allowed only with written consent employee, except for the cases provided for by parts 2 and 13 of article 72.2 of the Code.

Types of transfers to another job:

• • permanent (the change in the employment contract occurred for an indefinite period and the previous place and conditions of the contract are not saved):
  1. 1. transfer to another enterprise, institution, organization, at least in the same locality;
     2. transfer to another locality at least with the same production;
     3. translation at the same enterprise, institution, organization.
  • temporary (the previous place of work and the terms of the contract are preserved, but another job is entrusted for a certain (short) period, after which the previous working conditions are restored - article 72.2 of the Labor Code of the Russian Federation):
  1. 1. for production needs, including substitution (Article 74 of the Labor Code of the Russian Federation);
     2. pregnant women and women with children under one and a half years old for easier work;
     3. for health reasons according to a medical report (Article 73 of the Labor Code of the Russian Federation);
     4. at the request of the military registration and enlistment office for passing military training sessions on the job.
  • to another employer (for permanent work, at the written request of the employee or with his written consent; in this case, the employment contract at the previous place of work is terminated - clause 5 of part 1 of Article 77 of the Code).

Consent to translation, both permanent and temporary, must be obtained in writing. But if this did not happen, and the employee voluntarily began to perform other work, then such a transfer can be considered legal. If an employee is obliged to transfer due to production needs (if it is done in compliance with the law), the refusal to transfer is considered a violation of labor discipline, and absenteeism is considered truancy.

Does not apply to translation and does not require employee consent changing working conditions in connection with the adoption of a new one that changes them, with the development of technology, the introduction new technology, name change.

When the jurisdiction of the organization changes and its reorganization, labor relations continue with the consent of the employee (Article 75 of the Labor Code of the Russian Federation).

Transfer to another locality, another locality according to the administrative-territorial division, must be distinguished from a business trip to another locality. Their purpose and conditions are different. A business trip is a trip of an employee by order of the administration to another locality for a limited period to perform work, as a rule, in his specialty (official assignment). It does not require the consent of the employee (except for women with children under three years of age, etc.). The traveler retains his permanent place of work and average wage, and travel expenses are compensated to him in the form of travel payments.

A transfer is also considered a temporary substitution, the performance of duties according to the position of a temporarily absent employee. The law classifies such a translation as a production necessity. If the employee is entrusted with the performance of the duties of a temporarily absent employee, without relieving him of his main job, then this will be a temporary combination of professions, and not substitution. Substitution without the consent of the employee is limited to a month within a calendar year (Article 74 of the Labor Code of the Russian Federation).

Moving an employee

It is not a transfer to another permanent job and does not require the consent of the employee moving it in the same organization to another workplace, to another structural unit of this organization in the same locality, assigning work on another mechanism or unit, if this does not entail a change in the labor function and changes in the essential conditions of the employment contract (Article 72 of the Labor Code of the Russian Federation). The employer has the right to make such a transfer without the consent of the employee, provided that such a change is not contraindicated for him for health reasons.

Does not require employee consent:

1. 1. moving it from the same employer to another workplace, to another structural unit located in the same area,
   2. entrusting him with work on another mechanism or unit, if this does not entail changes in the terms of the employment contract determined by the parties.

It is forbidden to transfer and transfer an employee to work that is contraindicated for him for health reasons.

When the terms of the employment contract are changed, it is terminated (or terminated) in the following cases:

1. 1. In the absence of any other work available in the organization, corresponding to the qualifications and state of health of the employee, as well as in case of refusal of the employee from the proposed work, it is terminated in accordance with clause 7 of Art. 77 of the Labor Code of the Russian Federation (in connection with a change in the terms of the employment contract determined by the employee and the employer).
   2. If the employee refuses to continue working under the conditions of the relevant working hours, it is terminated in accordance with paragraph 2 of Art. 81 of the Labor Code of the Russian Federation (reduction in the number of employees) with the provision of appropriate and compensations to the employee.

Changes to the essential terms of the employment contract, which worsen the position of the employee in comparison with the terms of the collective agreement, agreement, cannot be introduced.

A change in the owner of the organization's property is not a basis for terminating the employee's employment contract, except for contracts with the head of the organization, his deputies and the chief accountant. With the above three categories of heads of the organization, the new owner can terminate employment contracts within 3 months from the date of his ownership rights.

Article 31 of the Labor Code prohibits an employer from requiring an employee to perform work not stipulated by an employment contract.

Labor legislation does not provide an understanding of the transfer to another job, however, based on the meaning of the content of Article 31, as well as Article 21 of the Labor Code:

Translation -this is any change in the labor function of an employee, as well as a change in other essential working conditions (the amount of remuneration, place of work / not to be confused with a workplace! /, work schedule, benefits, etc.)

Transfers on TP are regulated by Articles 32-34 of the Labor Code.

The initiative to change the conditions of the TD, i.e. the initiative of the transfer can be taken by both the employer and the employee.

Guarantees when changing the terms of the employment contract:

The consent of the employee to the transfer is mandatory / the inadmissibility of forced labor /

An employee cannot be transferred to work that is contraindicated for him for health reasons

If the employee's request for a transfer is caused by his state of health, the employer is obliged to satisfy it

The translation must be drawn up by an order, with which the employee gets acquainted with signature

If the transfer was made without the consent of the employee, he has the right not to start work and appeal this transfer to the CCC or the court; forced downtime is payable according to average earnings

If the employee did not consent to the transfer, but started to work, this does not deprive him of the right to appeal against this transfer and demand return to his previous job.

An employee cannot be transferred to another job during his absence (vacation, illness)

The most important guarantee is that the employee cannot be. transferred to another job without his consent.

Types of transfers

Translations can be classified on several grounds.

1. On a volitional basis, i.e. depending on whom the transfer initiative took place:

a) transfers initiated by the employer

b) transfers initiated by the employee.

2.By territorial basis:

a) transfers at the same enterprise (the labor function, wages / size, system /, mode of operation, structural unit - if it was specified at the conclusion of the TD) are changed; TD does not expire

b) transfers to another enterprise - in this case, labor legal relations with this enterprise are terminated - according to clause 5 of article 36 of the Labor Code and a new TD is concluded with the owner of another enterprise; the employee retains continuous work experience, the right to leave in the current year, i.e. his employment relationship is considered to be uninterrupted. Transfer to another company d. agreed with the head of this enterprise. In this case, the employee is considered to be invited to work on the translation and cannot be. denied employment

c) transfer to work in another locality is a referral to work outside a given locality; mb together with the enterprise, m. to another enterprise, then labor relations with the previous enterprise are terminated; also not m. denied employment; labor relations are also considered to be continuous.

3.Depending on the term:

a) permanent transfers - the previously agreed conditions of the TD are changed finally and the TD continues to operate in new edition... When an employee is transferred to another permanent lower-paid job, the employee retains his previous average monthly earnings for 2 weeks

b) temporary transfers - the terms of the TD are changed for a certain period agreed by the parties, after which the employee returns to his previous job:

At the initiative of the employee, while the employer cannot refuse to transfer:

* due to the state of health - the employer is obliged to transfer the employee to an easier job for the period specified in the medical certificate; the employee retains the average earnings from the previous job for 2 weeks.

If the deterioration of the employee's health and, consequently, the need for a transfer is due to an occupational disease or work injury, the average earnings from the previous job are retained for the entire period of transfer to an easier, lower-paid job.

* pregnancy or the presence of a child under the age of 3 years in a woman - in accordance with the medical opinion, in this case, the norms of production, maintenance are reduced or the woman is transferred to an easier job. Average earnings from previous jobs are retained for the entire period of the transfer (determined for the six months preceding the transfer). If the employer cannot find suitable job - a woman has the right not to go to work until the issue of her transfer is resolved, while maintaining the average earnings for all missed working days.

At the initiative of the employer / the employee's consent is required /:

* to replace a temporarily absent employee

* for prompt solution of arising production problems

* in case of downtime - for up to 1 month, the consent of the employee is required; his specialty, qualifications are taken into account; the transfer can be carried out in the same enterprise or to another enterprise located in the same area. If the employee fulfills the established labor standards, his salary should be not lower than the average earnings from the previous job for the entire transfer period

* in case of industrial necessity - part 2 of article 33 establishes that only the prevention or elimination of the consequences of accidents, natural disasters, epidemics should be considered as industrial necessity. Term - up to 1 month, work should not be contraindicated for an employee for health reasons. In this case, the employee can be transferred without his consent.Not m. pregnant women, women with a disabled child or a child under 6 years old, minors were transferred without their consent. Payment - not lower than average earnings for the entire transfer time

3. The concept of movement

Relocation is a change in an employee's workplace, i.e. assignment of work on another machine, unit, in another office, without changing the essential working conditions.

Those. the labor function, wages, and working hours remain unchanged. The movement is always carried out in the same plant. If at the conclusion of the TD the structural unit was not specified, it is considered a movement, and not a transfer, the direction of the employee to work in another structural unit within the same enterprise / Essential working conditions do not change! /

The employee's consent is not required to move; this is within the employer's master's authority.

In cases where, as a result of moving due to circumstances beyond the control of the employee, his average earnings decrease (for example, as a result of mastering a new job), an additional payment is made up to the average earnings within two months from the date of movement / Article 114 of the Labor Code /.

4.Changes in essential working conditions due to the reorganization of production / changes in the organization of production and labor /

Changes in essential working conditions due to the reorganization of production, i.e. changes in the organization of production and labor, is considered as an independent legal category. In accordance with part 3 of article 32, such changes include: systems and amounts of remuneration, benefits, working hours, establishment or cancellation of part-time work, combination of professions, change qualification ranks and job titles, etc.

Examples of changes in the organization of production: the introduction of new standards, the rationalization of jobs, the transition to another form of labor organization (for example, brigade), the introduction of new technologies, the introduction new technology, improvement of the structure of the enterprise, the mode of operation of the enterprise in order to preserve human resources, prevent bankruptcy, etc.

Changes in essential working conditions due to the reorganization of production are essentially a translation (although the legislation is not considered a translation).

The changes concern not one employee, but all employees of an enterprise, either a structural unit or a team, i.e. are massive

The labor function of workers remains unchanged, working conditions change.

When significant working conditions change due to changes in the organization of production and labor (i.e. for objectively significant reasons), the consent of workers to such a change is not required, but the following conditions must be met:

The presence of a decision of the owner, agreed with the trade union body, on changes in the organization of production and labor

Notification of the employee about such changes no later than two months.

If, after the expiry of the warning period, the employee continues to work, this is considered as his consent to work in the new working conditions.

If, however, the previous essential working conditions cannot be maintained (i.e., their change was due to objective reasons), and the employee does not agree to continue working in the new conditions, then the TD is terminated in accordance with clause 6 of Article 36 - due to the changed essential conditions labor.

Thus, the employee cannot be forced to work in conditions that do not suit him - the principle of the inadmissibility of forced labor. In this case, the grounds for termination of the TD are considered valid. The employee is paid severance pay in the amount of the average monthly earnings.

Topic 5. Termination of an employment contract