Changes in terms and conditions employment contract required in cases where their execution becomes impossible due to the occurrence of circumstances that prevent this. The legislation does not define such a step, but does not impose prohibitions on it. The main thing is that the procedure is carried out and formalized correctly from a legal point of view.
What does a change in the terms of the contract involve?
A common reason for making changes is restructuring and reorganization of the enterprise. A simple change of name becomes a sufficient reason for this. To determine all situations, you need to remember exactly what conditions are specified in this document:- Full name of the employee and name of the employing organization.
- Position held.
- Name of department, structural unit, workshop, etc.
- Amount of payment and principles of its calculation.
- Responsibilities of the parties (employee and employer).
- Responsibility for failure to fulfill obligations or their dishonest performance.
- Details of the parties.
- Signatures of the employee and manager. The latter is certified by the original seal (for legal entities).
Changing the terms of the employment contract determined by the parties
The Labor Code, namely Article 74, stipulates that the employing company has sufficient grounds to make changes by a sole decision. This applies to most conditions other than the position held by the employee. This is possible in cases where the technological working conditions at the enterprise have changed (modernization of the production line, change of products, etc.). The abolition of branches, departments, and workshops is also a sufficient basis for a sole decision to change the terms of the employment contract. In order for this step to be carried out in accordance with the laws, the following steps must be completed:- Employers determine the number of employees and establish them personally. This refers to those who are directly affected by organizational or technological changes.
- Personal notifications about changes in the terms of the employment contract, the date of their occurrence and the reasons are sent to each of the interested employees. This must be done 60 days before the relevant order comes into force and the agreement is signed.
- On at this stage dissenting employees are provided with alternative options. If an employee cannot accept the new conditions, the company must find for him workplace, which he can borrow. At the same time, the salary should not be less, and the rank should not be lower. Again, this must be notified in writing. Changes must be reflected in the relevant employment agreement.
- This stage occurs in cases where alternative options are not satisfactory to workers. Then, according to Art. 77- Labor Code of the Russian Federation, the conditions established by agreements are assigned the status of invalid. The employment contract is considered terminated.
Special cases provided for by law
There are several such situations, each of which is reflected in the Labor Code Russian Federation:- transfer of an employee to new position determined by both parties, and the employer cannot unilaterally make such a decision (Article 72 of the Labor Code of the Russian Federation);
- if there are technological and organizational reasons for making changes, the sole decision of the employer cannot affect labor functions employee (Article 74 of the Labor Code of the Russian Federation);
- the employer company has sufficient rights to transfer employees to part-time work in order to preserve jobs and not carry out mass layoffs of citizens (Article 372 of the Labor Code of the Russian Federation);
- Employees’ refusal to transfer to a shortened schedule is sufficient grounds for dismissal and termination of the conditions specified in the employment contract (Article 81-Labor Code of the Russian Federation).
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The employer has the right to change to permanent basis terms of the employment contract at your discretion. But in what cases and in what order? Let's sort it out.
The employer can change the terms of the employment contract ( wages, work and (or) rest schedule, nature of work (traveling, mobile, etc.), workplace) on the basis of Art. 72 Labor Code of the Russian Federation.
But adjustments are possible only if the previous working conditions cannot be maintained due to changes in organizational or technological working conditions. However, the employer does not have the right to change the labor function (that is, the employee’s labor responsibilities) even in this situation (Article 72, Part 1 of Article 74 of the Labor Code of the Russian Federation).
In other cases, a permanent change in the terms of the employment contract is possible only by agreement of the parties, and it must be expressed in writing.
To the number organizational changes may be attributed:
- changes in the organization's management structure;
- introduction of forms of labor organization (team, rental, contract, etc.);
- changing work and rest schedules;
- introduction, replacement and revision of labor standards;
- changes in organizational structure enterprises with redistribution of the load between divisions or specific positions and, as a consequence, changes in remuneration systems.
Technological changes working conditions may be:
- introduction of new production technologies;
- introduction of new machines, units, mechanisms;
- improvement of workplaces;
- development of new types of products;
- introduction of new or modification of old technical regulations.
Features of adjusting the terms of an employment contract for reasons related to changes in organizational or technological working conditions are spelled out in Art. 74 Labor Code of the Russian Federation. Please note that the list of examples given in the article is open, that is, forms of organizational and technological changes in working conditions may be different.
Changes in organizational or technological working conditions should be distinguished from other changes. For example, a decrease in profits, a deterioration in the financial position of the organization, or a change of manager cannot be reasons that allow the employer to unilaterally change the terms of the employment contract.
If changes in organizational or technological working conditions actually occurred, then the employer is obliged to notify the employee in writing about upcoming changes to the employment contract, indicating the reasons that led to these changes. Please note: notification must occur at least two months in advance.
Changes to the terms of the employment contract introduced in accordance with Art. 74 of the Labor Code of the Russian Federation (that is, for reasons related to changes in organizational or technological working conditions), should not worsen the employee’s situation in comparison with the established collective agreement, agreements and regulations.
The employee may not accept the changes. Then the employer is obliged to offer him another (vacant) position or job that corresponds to his qualifications, as well as a vacant lower position or lower paid job, which the employee can perform taking into account his state of health. We are talking about employer vacancies available in the area. An employer is obliged to offer a job or position in other locations only if this is provided for by a collective agreement, agreements, or employment contract (paragraph 3 of Article 74 of the Labor Code of the Russian Federation).
And again attention! Proposals are prepared in writing, in two copies (for the employee and the employer); the employer’s copy must have the employee’s signature confirming familiarization with the contents of the document, in order to avoid problems in possible legal proceedings.
If there are no vacancies or the employee refuses all offers (again, the refusal must be in writing), then subject to termination in accordance with clause 7, part 1, art. 77 of the Labor Code of the Russian Federation (“an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties”). A dismissal order is issued, the employee receives severance pay in the amount of two weeks' average earnings.
The legality of the dismissal of an employee on the basis provided for in clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, can be verified in court. At the same time, according to clause 21 of the Resolution of the Supreme Court of the Russian Federation No. 2, the employer is obliged, in particular, provide evidence confirming that the change in the terms of the employment contract determined by the parties was precisely a consequence of changes in organizational or technological conditions labor(for example, changes in equipment and production technology, improvement of jobs based on their special assessment, structural reorganization of production) and did not worsen the employee’s position in comparison with the conditions established by the collective agreement or agreement. Only if such evidence is available can the termination of an employment contract be recognized as legal.
Do organizational or technological changes in working conditions always lead to changes in the terms of the employment contract determined by the parties?
Not every organizational or technological change in working conditions can lead to a change in the terms of the employment contract. Mandatory the fact that it is impossible to maintain the previous terms of the employment contract. If an employee who does not agree with the employer’s decision goes to court, then the employer will have to prove the impossibility of maintaining the previous terms of the employment contract.
As an example, let's look at the appeal ruling of the Chelyabinsk Regional Court dated January 21, 2016 in case No. 11-49/2016. The nurse was informed that her place of work without changing her job function would be another branch of the sanatorium. The basis is the order of the chief on the redistribution of junior medical staff positions among the departments of the complex. The woman refused to continue working under the new conditions and was dismissed on the basis of clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation and went to court.
The court of first instance established the legality of the actions of the sanatorium management: the defendant had changes in organizational working conditions that did not allow maintaining the previous working conditions, the plaintiff refused to perform work in the new conditions, as well as other work available to the defendant, the employer followed the dismissal procedure.
The Court of Appeal found the colleagues' conclusion to be incorrect. According to the explanations given in paragraph 21 of Resolution No. 2 of the Supreme Court of the Russian Federation, the employer is obliged to prove that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions. From the order of the head of the sanatorium, we can conclude that in connection with the assignment of functions for the provision of a list of services and organizational and technical measures for the sanitary maintenance of the internal premises of the sanatorium within the framework of a state contract for a cleaning company, the implementation of measures to optimize the organization of reception and accommodation of vacationers, the expected increase in the number of vacationers in the summer-autumn period in the branches of the sanatorium, where this type work is carried out by junior medical staff, the rates of the sister-hostesses of the therapeutic department are redistributed between the branches of the complex.
However, evidence of changes in organizational working conditions, concerning the structural reorganization of activities, the actual redistribution of staffing levels in the manner prescribed by the order, in the case materials was not presented. From the employer’s explanations it followed that after the termination of the employment contract with her, no other employees were hired for the plaintiff’s position; the position was vacant. That is no changes were made to(at the time of consideration of the case, the position was retained in staffing table), the need to perform this type of work has not disappeared. The mere conclusion of a state contract for the provision of services for the sanitary maintenance of facilities is not evidence of a change in the organizational working conditions of junior nurses for patient care in the employer's structural units.
Thus, the employer did not provide evidence of objective changes in organizational or technological working conditions that would give the employer grounds to dismiss the employee if he disagrees with continuing to work under the new working conditions. The plaintiff was reinstated to her previous position, received a salary for the period of forced absences and moral compensation.
The employer changed the terms of the employment contract on the basis of an additional agreement signed by the parties. Can these adjustments be considered changes at the initiative of the employer? Or did the employee voluntarily agree to the proposed changes by signing the appropriate document?
The employer decided to change the terms of the employment contract - which means the employer will be recognized as the initiator of the changes. If the employee does not agree to accept the new terms of the contract, the employer has no right to put pressure on him. In the event that the content of the employment contract is adjusted due to changes in organizational or technological working conditions, and the employee goes to court, the employer will have to prove that the new terms of the employment contract are a consequence of changes in organizational or technological working conditions (for example, innovations in technology and production technology , improvement of jobs based on their SOUTH, structural reorganization of production).
Let us consider as an example the Determination of the Moscow City Court dated January 27, 2016 No. 4g-82/2016. After the employee informed the employer about her pregnancy, her work functions were significantly reduced and her salary was reduced. In the notice, the employer explained its actions by organizational changes, namely the optimization of the company’s organizational structure and personnel costs through structural reorganization and the creation of a new structural unit, as well as redistribution job responsibilities.
The expectant mother was forced to sign an additional agreement to change the terms of the employment contract, due to which the name of her position and the amount of her salary changed. Considering the employer’s actions illegal, the employee went to court.
In refusing to satisfy the plaintiff’s demands, the court of first instance proceeded from the fact that the employee carried out her official duties in accordance with the additional agreement to change the terms of the employment contract with a reduction in their volume and wages, which indicates that the change in the terms of the employment contract was voluntary on her part.
The Court of Appeal did not agree with this opinion - it took into account the employee’s explanations that the additional agreement, which reduced her salary and changed her usual work functions, was actually signed under pressure from the employer, and took into account the dependent position of the employee within the framework of labor relations. That is why the court concluded that the employer abused the rights granted to him.
The court indicated that changes to the employment contract were initiated by the employer. The employer has such a right, but only if the organizational or technological working conditions change and without changing the employee’s labor function. However the employee’s work function has been significantly changed- from her job description Almost all of her job responsibilities were eliminated. This indicates a violation by the employer of the provisions of Art. 74 Labor Code of the Russian Federation.
On the other hand, organizational changes in working conditions that the employer insisted on they weren't. The court indicated that the optimization of the organizational and staffing structure and personnel costs, the redistribution of job responsibilities with the simultaneous approval of a new job description for the employee’s position, and the reduction in her pay inherently indicate that the employer is organizational and staffing events, and not about changing organizational working conditions (structural reorganization of production). Changes to the terms of the employment contract were declared invalid.
So, the employer has the right to adjust the terms of the employment contract only if the previous conditions cannot be maintained due to changes in the organization. These changes can be either organizational or technological. The employer has no right to change the employee’s job function.
The employee’s agreement to change the terms of the employment contract is mandatory. If an employee refuses to continue the employment relationship under new conditions, then he must be offered all available vacancies. When the proposed positions are not suitable for the employee, it is issued on the basis of clause 7, part 1, art. 77 Labor Code of the Russian Federation.
In the next issue, we will continue to consider situations that arise when an employer changes the terms of an employment contract, and we will find out how to transfer an employee from a temporary position to a permanent one, whether it is possible to fire an employee for absenteeism who has not accepted the new terms of the employment contract and returned to work, or what to do if at the time of dismissal the person is on sick leave, we will also determine in which cases the transfer of an employee to another place is not a change in the terms of the employment contract and does not require the employee’s consent.
Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation Labor Code Russian Federation".
According to the explanations from clause 21 of the Resolution of the Supreme Court of the Russian Federation No. 2.
An employment contract is a formal written agreement between an employer and an employee that sets out certain mutual rights and responsibilities. Any transformations, changes and additions are possible only 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 compliance with the interests of the employee. Failure to comply with this law will result in penalties. Both the employer and the employee must accurately understand and follow 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 an employment contract
The procedure for carrying out any procedures with a document concluded between an employee and an employer is allocated to a separate chapter of the labor code - Chapter 12. Initially, the Labor Code establishes that changing any provisions in an employment contract is allowed only by agreement of both parties, with the exception of certain cases. According to Article 74, if editing is necessary due to improvement of working conditions, the employer has the right to make amendments without the consent of the employee, notifying him 2 months in advance. However, the law clearly states:
- The employer cannot unilaterally edit clauses relating to the performance of the employee’s labor functions;
- The employer must offer all employees a reduced working time regime in the event that mass layoffs begin after the reforms. 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 transfer to another position or to another unit for a period of up to 1 month, if this is due to emergency circumstances or the need to prevent disasters and accidents. Demotion 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 one can resort to editing its provisions:
- Transfer is 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 labor functions and other conditions that need to be reflected. A transfer is possible only with the consent of the transferred employee. Translation should not be confused with displacement. Relocation is the transfer of an employee to another job in the same organization without a change in functions and innovations in regulations, and it does not require the consent of this employee. It is extremely important to understand the differences between these concepts;
- Change of any items previously agreed upon by the employee and manager due to a change in working conditions;
- Change of owner of the organization in which the employee is registered, its reorganization or transformation of the type of institution;
- Removal of an employee from performing official duties.
The legislator determines that the parties have the right to change any previously agreed provisions. Most often, the duration of the employment contract, the name of the organization (if it is changed), the employee’s salary, the position held, the legal address of the employer, etc. change.
Change Order
On both sides labor relations The question will certainly arise about the form of the order to edit clauses of the employment contract. The law does not provide for a special standardized format for this document. The order is issued in free form using the organization’s letterhead.
The header of the document must contain the full name of the organization and its registration codes - KPP, INN and OGRN. Just below is the word “Order” indicating its number. Under this line the name of the order is written, for example - “On introducing changes to the terms of the employment contract of A. A. Ivanova.” The next line contains the date.
After completing the header, the introductory part of the document is written, containing in a specific form the basis that became the reason for making the amendments. After indicating the grounds, the word “I order” is placed, and the following data is written under it:
- Grounds for amending the employment contract. Most often, it is a previously concluded agreement between the employee and the employer, therefore it is enough just to put down its details;
- Requisites;
- The text itself indicating the part in which it was included.
After these operations, all that remains is to set and display the start date of the order and assign responsible persons. The order to change the employment agreement must contain the signatures of 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 contents 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 an employment contract. A kind of algorithm is formed:
- If the initiator is the employer, he notifies the employee of his desire to make the necessary changes. For this purpose, the employer must send the direction to the employee in two copies (one copy, after being endorsed by the employee, goes to the employer, the second remains with the employee). If the employee agrees to edit the employment contract, he confirms this in writing. This confirmation is the basis for starting the procedure for drawing up and accepting the agreement;
- An additional agreement is generated in two copies. It must contain all proposed amendments;
- The drawn up agreement is registered in accordance with the standards established in the organization;
- One of the copies is given to the employee, and this fact must be certified by the employee’s signature in the employer’s copy;
- A decree is issued containing the fact of amending the contents of the concluded document. Like the agreement, this document must be registered;
- The parties familiarize themselves with the order and confirm it by affixing signatures.
This procedure for changing an employment contract is established by law and cannot be changed.
Change agreement
A correctly drafted agreement on editing the provisions of the employment contract concluded between the parties is an extremely important component. The law establishes that any amendments to the agreement between the employee and management must be recorded in an additional document. Such an agreement guarantees the existence of an agreement between the parties on editing the terms. It should be taken into account 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.
For your information
The agreement must correctly reflect the essence of the changes being made. The reasons for changes to the employment contract do not need to be included. The agreement comes into force from the moment it is signed 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 jobs, changing job functions, salary and related payments, working hours and other things.
A sample agreement for amending an 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 stated earlier, management can, without discussion, on its own initiative, amend the employment contract. The law says that such changes are possible only with a change in various types of working conditions at the enterprise. The main basis for the unilateral change of various points of this document is the inviolability of the employee’s labor function (responsibilities). In addition, the need to introduce various amendments must be justified by the management of the organization with the provision of appropriate evidence.
Management is obligated to notify the employee of the proposed changes and the reasons for their introduction two months in advance. The notice must be provided in writing and contain the following essential data:
- Reasons for making amendments.
- Offering the employee two options - acceptance or rejection.
- Offer another vacancy available to the manager. It must be suitable for the employee.
As in the case of an editing order, the legislator does not provide for an official form of notification. Accordingly, the employer can draw up the form at his own discretion, but not contrary to the norms of the Labor Code of the Russian Federation (namely Article 74). Let's provide a sample of such a notice:
As you can see, the notification contains the reasons for changing the items, the items being changed, a mark of receipt and a mark of the employee’s agreement or disagreement.
Additional Information
In addition, 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 is terminated based on the provisions of the Labor Code.
It is possible that the amendments made may cause the dismissal of a large number of employees. In this case, the organization’s management may resort to establishing a different work mode - part-time. The duration of this innovation should not exceed 6 months. If you refuse to work for half day the agreement concluded between the parties is also subject to termination.
And the last, but no less important, clarification is that any transformations must be carried out taking into account maintaining the employee’s position at the same level.
The procedure for changing the terms of an employment contract by an employee
Situations often arise when the initiator of editing clauses of the employment contract between the manager and the employee is the employee himself. In this case, he must submit an application containing a request for changes with a description of the reasons. The application is registered, after which the employee can only wait for an official response from the employer.
If you agree, the further procedure is no different from that previously described. It also consists of several points:
- Generating an agreement between the parties on amendments;
- Registration of the agreement according to the internal standards of the organization;
- Signing and transferring copies of the agreement to the parties;
- Issuance of an order to edit the employment contract and its registration;
- Familiarization of the employee with the order and affixing signatures.
This order is officially established and cannot be violated.
Refusal to make amendments
As mentioned earlier, management has the right to personally change the provisions in connection with changes in working conditions. You just need to send a notification about this to the employee. But what happens if an 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 available options for changing the vacancy. In their absence or if the employee refuses to accept them, the employer has the full right to dismiss the employee and terminate all employment relations with him. The Labor Code of the Russian Federation speaks about this (an employee’s disagreement to work after a change in regulations leads to the termination of all relations between the parties).
Nuances
Wanting to unilaterally make amendments, employers often get confused. This entails the recognition of the adopted innovations in the employment contract as illegal. There are many editing situations in order to optimize work:
- Transfer of an employee to another office or division;
- Adding new responsibilities;
- Change of work schedule;
- Changing the operating mode;
- Amendments to employee salaries and much more.
And even despite the fact that the legislation clearly regulates this issue, many employers are confused not only about the procedure for adopting amendments, but also about what can be considered a change in the contract and what cannot.
It is important to understand that all information to be recorded is contained in Article 57 of the Labor Code of the Russian Federation. Editing them will entail changes to the concluded agreement. All that remains is to look at the mandatory nature of the clause being changed - 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, you need to check whether it is contained in the contract. If it is, you will still have to edit it.
In other cases, fixing innovations is not mandatory. 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, employers often make the following mistakes:
- Does not send a notice to the employee;
- Sends a notification, but does not indicate the reasons for the change;
- Arbitrarily calculates the notice period for the employee (according to the law - 2 months);
- Neglects to offer other vacancies if the employee refuses the changes;
- Does not follow the order of making changes.
Almost all of the errors discussed above lead to the recognition of the changes made as invalid, and the dismissal of an employee due to refusal is considered illegal. That is why strict adherence to the procedure is extremely important.
The employer should take into account that during legal proceedings labor legislation and the court puts the interests of the employee above the interests of the employer. In this regard, it is necessary to treat the editing procedure of such an important document as carefully and responsibly as possible. If all of the above nuances are observed and there are no 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 not an exception at all. For any manipulations, it is necessary to strictly follow all instructions of the Labor Code of the Russian Federation. This contributes to the correct implementation of all procedures and the absence of sanctions for violating the rules of their implementation. Following step by step instructions, timely registration of all necessary documents and the presence of agreement between the employee and the management of the organization is the key to the success of any operation regulated by labor legislation.
Changing an employment contract is a change in its terms determined by agreement of the parties; change by the employer as a result of its reorganization, change of owner, his property, in which the employment relationship with the employee continues only with his consent or is terminated.
The basis for changing an employment contract is usually an agreement - a bilateral expression of the will of the parties, except in cases provided for 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 changes in names) in comparison with those stipulated in the employment contract, assignment of work to another employer or in another location, except for a business trip.
- relocation - an assignment by the employer to an employee of the previous job at a new workplace, both in the same and in another structural unit (if it is not separate) while maintaining the working conditions stipulated by the employment contract;
- change in significant working conditions.
Transfer is not any change in the employment contract, but its most important terms:
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 enter into or terminate an employment contract, as well as other separate structural subdivision.
3. Another area - another settlement.
A transfer differs from a business trip:
- Different goals and essence. The main purpose and essence of a business trip is the employee’s performance of an official task within the framework of his work function outside his place of permanent work. Transfer is the performance of a previous or new job function in full.
— Business trips cannot exceed 30 calendar days. The translation can be temporary or permanent and not limited by time frames.
Translations can be classified on various grounds:
1. Duration:
- permanent - without maintaining the previous place of work and only with the consent of the employee;
- temporary - can be carried out at the initiative of the employee or employer. Not allowed even with the consent of the employee if there are contraindications for health reasons. Temporary transfer without the employee’s consent is possible in the following cases: assignment of work in the same area; existence of a production need for the employer; work should not be contraindicated for health reasons; for a period of no more than 1 month.
2. Place of transfer:
- at the same enterprise;
- at another enterprise;
- with the same employer, but in a different area.
3. In whose interests:
Without the employee's consent, the following transfers are permitted:
In connection with production necessity - the need for a given employer to prevent a catastrophe, an industrial accident, to eliminate their consequences, the consequences of natural disasters, to prevent an 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 for another employer.
2. In cases of downtime. Downtime - no more than 6 months absence from work due to production or economic nature. Carried out taking into account the profession, specialty, qualifications, position for the entire downtime. If an employee is transferred to another employer, the period should not exceed one month. The average earnings at the previous place of work are maintained. An employee who refuses a transfer is not punished, and 2/3 of the tariff rate remains with him.
The transfer is carried out within the scope of the specialty, qualification and position stipulated by the employment contract, that is, this is work in the previous labor function.
Displacement can be temporary or permanent and be expressed in the following forms: within one structural unit, if it is located in the same area as the previous one; getting work on another mechanism or unit.
The employee's consent is not required for the move. But it can only be produced if there are production, organizational, or economic reasons. Relocation is not allowed if a new workplace is contraindicated for health reasons.
Change of employment contract
The movement is formalized by order or instruction of the employer.
Differences between movement and translation:
— When transferring, the job function and (or) place of work changes; when moving, only the workplace.
— The transfer does not require the employee’s consent.
- They differ in terms of terms and payment.
Changes in significant working conditions. Essential working conditions include systems and amounts of remuneration, guarantees, working hours, rank, name of profession, position, establishment or abolition of part-time work, combination of professions, establishment and change of labor standards, amount of financial 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,” a transition to contract form hiring with an employee with whom the 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 labor function. The employer is obliged to warn the employee about changes in essential working conditions in writing no later than one month in advance. If the employee refuses to continue working, the employment contract with him is terminated. Changes in essential working conditions are formalized by order or instruction of the employer.
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Labor law
Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
(edited) Federal Law dated June 30, 2006 N 90-FZ)
(see text in previous
In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.
The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months in advance, 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 available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
If there is no specified work or the employee refuses the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.
In the event that the reasons specified in part one of this article may lead to mass dismissal of workers, 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, to adopt local regulations , introduce a part-time working day (shift) and (or) part-time working week for up to six months.
If an 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.
Cancellation of a part-time working day (shift) and (or) part-time working week earlier than the period for which they were established is carried out 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 or agreements.
Art. 74 Labor Code of the Russian Federation. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
The most important document for an employee, establishing his rights, obligations and guarantees, is an employment contract. In this document, as in any other agreement, the law provides for conditions, without specifying 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 a special procedure for changing the essential terms of the employment contract.
- place and date of start of work;
- work and rest schedule;
- terms of remuneration;
This basis 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 staff reduction. Often, dishonest employers try to disguise staff reductions as changes in significant working conditions. In this case, the employee may go to court with a demand to change the grounds for dismissal and pay the compensation due to him.
In court, the employer is obliged to provide written evidence confirming that the reason for the change in significant working conditions was precisely changes in organizational or technological working conditions. Organizational changes mean the creation or abolition of branches. Under technological - a change in the technical equipment of the enterprise to a newer one, requiring workers of higher qualifications. In recent years, courts have often made decisions in favor of dismissed workers when resolving such disputes.
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Changes in the essential terms of the employment contract
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The most important document for an employee, establishing his rights, obligations and guarantees, is an employment contract. In this document, as in any other agreement, the law provides for conditions, without specifying 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 a special procedure for changing the essential terms of the employment contract.
Article 57 of the Labor Code of the Russian Federation contains an exhaustive list of essential conditions. These include:
- place and date of start of work;
- name of profession, specialty;
- the position for which the employee enters;
- rights and obligations of the employee and employer;
- characteristics of working conditions (mandatory indication of harmful and hazardous conditions labor, if they occur);
- work and rest schedule;
- terms of remuneration;
- types and conditions of social insurance, if it is directly related to work activity.
Changes to the above working conditions by the employer are permitted only for reasons related to changes in organizational or technological working conditions. The employee must be notified in writing of changes in essential conditions at least 2 months before the occurrence of these changes. This rule is especially important for the employer to observe, since dismissal of an employee due to a change in significant 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 notice, the court can force the employer to reimburse wages for this period.
Changing the essential terms of the employment contract is not related to the employee’s consent. Therefore, within 2 months the employee must decide whether he is ready to continue working under new conditions or not.
At the same time, if the employee refuses to accept the new conditions, by law the employer must provide him with another available position that matches the employee’s qualifications. But, as a rule, such a position is not available, and the employee quits due to refusal to continue work if the essential terms of the employment contract change.
In court, the employer is obliged to provide written evidence confirming that the reason for the change in significant working conditions was precisely changes in organizational or technological working conditions. Organizational changes mean the creation or abolition of branches. Technological - a change in the technical equipment of the enterprise to a newer one, requiring more highly qualified workers. In recent years, courts have often made decisions in favor of dismissed workers when resolving such disputes.
Transfer to another permanent job and relocation
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 location along with employer. Changes in other conditions defined by the employment contract (for example, working hours, wages), is not a transfer to another job.
Transfer to another job is possible only with the written consent of the employee. If a 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 may be considered legal. However, the employee’s performance of other work does not release the employer from the obligation obtain written confirmation from the employee of such consent to the 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 area together with the employer are formalized by order (instruction) of the employer . The corresponding entry about the transfer is made in the work book.
When transferred to work in another locality, employees are paid appropriate compensation: employee travel costs, baggage costs, etc. Under different terrain should be understood as the area outside the administrative-territorial boundaries of the corresponding locality. Transfer to work from one locality to another, even within the same administrative district, is considered as a transfer to another locality regardless of the availability of bus or other regular service between these points.
Employee refusal to transfer to another location together with the employer, which is the basis for terminating the employment contract with him.
Transfer to work for another employer may be carried out at the request of the employee stated in writing, or with his written consent, if the initiative for the transfer comes from the employer. Transfer to a permanent job with another employer entails a change in one party to the employment contract, therefore, it is considered by the legislator as the very basis for termination of the employment contract. IN work book records of dismissal and hiring are made for the employee, indicating the order in which the dismissal was carried out in connection with the transfer - 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 job to which the employee is transferred according to medical opinion, being lower paid, for the employee his previous average earnings are maintained for the month from the date of transfer, and in case of transfer due to a work injury, occupational disease or other injury to health related to work - until permanent disability is established or until the employee recovers.
If an employee refuses to be transferred to another job in accordance with a medical report, 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 it should be distinguished moving from the same employer at another workplace, in another structural unit located in the same area, assignment of work on another mechanism or unit.
This kind of movement does not require employee consent, if this does not entail a change in the terms of the employment contract determined by the parties.
Change of workplace or structural unit can be considered a movement 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, areas, etc.
Temporary transfers
Temporary transfers for other work can also be divided into separate
1) requiring the written consent of the employee.
What is the procedure for changing an employment contract (grounds)?
The employee and employer have the right to enter into an agreement on temporary transfer. The period of such transfer is determined by agreement between the employee and the authorized representative of the employer and should not exceed one year (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). The specified transfer can be carried out to replace a temporarily absent employee, who, in accordance with the law, retains his place of work.
An entry about a temporary transfer can be made in the labor record.
employee’s book at his request;
2) not requiring the employee’s consent. Based on Art. 72.2 of the Labor Code of the Russian Federation, the employer has the right to transfer an employee for a period of up to one month to a job not stipulated by an 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 transfer is permitted to prevent a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic
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When are conditions allowed to change?
A change in the terms of an employment contract determined by the parties is one of the types of changes in an employment contract, which leads to the conclusion of an additional agreement. Such transformations are permissible in situations where, due to the transformation of technological/organizational working conditions, the terms of the existing contract cannot remain the same.
Changing the terms of an employment contract at the initiative of the employer unilaterally is allowed in all cases, with the exception of changing the functionality of the employee (Article 74 of the Labor Code of Russia).
Organizational/technological changes mean:
- organizational transformations of working conditions imply the presence of structural transformations, that is, division/merger of organizational structures, complete elimination of representative offices, etc.;
- Transformations of technological conditions often consist of improving production schemes, the production process, as well as its re-equipment.
The employer must inform subordinates in writing about upcoming changes to the essential terms of the contract and the reasons that gave rise to such a need at least 2 months in advance, unless a different procedure is specified in the employment contract.
If an employee does not want to work in other conditions, as evidenced by his refusal in writing, he must receive an offer from the employer regarding the possibility of filling another vacant position. At the same time, a person can occupy it by virtue of his vocational training and health status.
It is worth noting that these vacancies must be located in the same area as the previous place of work.
An employer has the right to offer work in another location only if this is permitted by a collective agreement or employment contract, including an additional agreement. Changing the terms of an employment contract without the employee’s consent is possible when there is a possibility of massive staff reductions. In such a situation, the employer, on the basis of his order, can arrange a part-time working day or working week for a period that cannot be more than six months.
If a person who has received notification of a change in the terms of the employment contract gives the employer a refusal and does not agree to work in accordance with the issued order, the contract with her is terminated in accordance with Art. 81 clause 2 part 1. TC, while this employee receives all guarantees and provided compensation.
Modification of an employee’s labor functions as a result of an urgent transfer to another job is also allowed.
An urgent transfer can be permanent or temporary. Temporarily, a person can be urgently transferred to another job for a period that does not exceed 12 months, and in a situation where such a transfer is caused by the temporary absence of another employee - until he returns to work.
An employee can be urgently transferred to another permanent job only with his consent. As for an urgent temporary transfer, it is possible on the basis of an order from the employer for a period of no more than 30 calendar days, if the following circumstances exist:
- workers are urgently needed to prevent a natural or man-made disaster or natural disaster and in other exceptional situations that threaten the lives of part of the population;
- when, as a result of the above circumstances, downtime occurs, which can lead to destruction or damage to property.
An employee’s refusal is possible even in conditions of an urgent transfer: the employee has the right to refuse if, in order to fulfill new job lower qualification required.
Agreement of the parties and amendments
At the legislative level, a special procedure is provided that entails changing the terms of the employment contract determined by the parties. It can be divided into several stages:
- At the initial stage, the employer will have to decide which employees may be affected by the changes and which contract terms should be changed by concluding an additional agreement.
- The next stage assumes that the employer must send a notice of changes to the terms of the employment contract to all employees affected by such changes. The notification should contain information not only about the upcoming changes, but also about the reasons that caused them. Employees must be informed at least 60 days in advance. After this time, the parties must enter into an additional agreement, and the employer must issue an order.
- The next stage occurs only if the employee refuses to work under the updated conditions. In case of refusal, the employer must offer such a person a job that corresponds to her qualifications; a vacant position that is paid lower may also be offered. If agreement is reached on this issue, the stage also ends with the signing of an additional agreement and its execution with the appropriate order.
- The fourth stage occurs if it is impossible to provide an employee with work that meets legal requirements, or if the employee refuses the work offered to him. IN similar situation labor relations are completed in accordance with Article 77 of the Labor Code of Russia, namely clause 7, part 1.
A change in the terms of an employment contract determined by the parties can be initiated by both the employer and the employee. If the initiator is an employee, he draws up his proposals in the form of a statement, in which he sets out a proposal to create additional conditions labor or their changes.
Making changes at the initiative of the employer begins with the preparation of an order to change working conditions. The order must indicate the nature, grounds and date from which the changes introduced will be relevant.
It is important to remember that employees must be notified of the change no later than two months in advance (Article 74 of the Labor Code).
Article 306 of the Labor Code determines that if the employer is an individual, the employee must be warned 14 days in advance, and according to Article 344 of the Labor Code, if the employer is a religious structure - a week in advance.
If the employee does not refuse to work under the new conditions, as well as in the absence of a refusal on the part of the employer (if the initiator is the employee), both parties must sign an additional agreement to the contract.
An additional agreement to the contract, which reflects upcoming changes in basic working conditions, is prepared in two copies. Both copies of the additional agreement must be signed by one and the other party. The first version of the additional agreement is handed over to the employee for storage, the second version of the additional agreement is stored at the enterprise. The storage period is 75 years. An additional agreement can be drawn up by analogy with an employment contract; it must indicate:
- Title of the document;
- its number and date;
- the place where it was signed;
- data that will allow us to identify who the parties to the contract are;
- signatures of both parties.
What conditions in an employment contract can be changed?
An additional agreement may change the following terms of the employment contract, which from an organizational and legal point of view are the most significant:
- determining the employee’s place of work;
- determination of labor functions that are part of the employee’s responsibilities;
- period of validity of the employment contract;
- salary;
- determination of working hours and the time provided for rest;
- Availability compensation payments for difficult working conditions and work in harmful or dangerous conditions;
- availability of compulsory social insurance for employees in accordance with labor legislation;
- other conditions provided for by law.
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Dismissal of a pregnant woman
There is a branch in St. Petersburg - a branch of the bank, this branch, in accordance with banking instructions, opened an internal structural unit of the operational office in the Leningrad Region. An agreement was concluded with me with the St. Petersburg branch, for all personnel documents I interact with him. The place of work is registered as this operational office in the region where I worked. I went on maternity leave. In connection with the reorganization of this bank, a decision was made to terminate the activities of internal structural divisions (there is a whole list). And they want to fire me in accordance with Part 4 of Article 81 of the Labor Code of the Russian Federation, as per the rules of liquidation. They register this operational office for tax purposes as a separate structural unit, but as I understand it and according to the Tax Code of the Russian Federation, this is used only for taxation purposes, and not for determining isolation. The question is: is liquidation legal? Is it possible here to prove a reduction in staff or a change in certain terms of the contract, specifically the place of work, I want to be transferred to St. Petersburg. The employer all refers to paragraph 16 of the Plenum Resolution Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”
Irina 08/30/2019 00:38
Hello! Upon liquidation of a branch or other separate division organization located in another location, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization (Part 4 of Article 81 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). Consequently, when dismissing employees in connection with the liquidation of a branch, they are provided with the same guarantees as during the liquidation of an organization, namely: 1) notification of the upcoming liquidation procedure of the branch no later than 2 months in advance, in person and against signature (Part 2 Article 180 of the Labor Code of the Russian Federation); 2) payment upon dismissal of severance pay in the amount of average monthly earnings (Part 1 of Article 178 of the Labor Code of the Russian Federation); 3) maintaining the average monthly earnings for the period of employment, but not more than 2 months (Part 1 of Article 178 of the Labor Code of the Russian Federation).
Kolenskaya Svetlana Alexandrovna 30.08.2019 09:17
The employer is right.
Mulikov Maxim 08/31/2019 14:32
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