1. Change in organizational or technological working conditions

When carrying out measures to change the organizational or technological working conditions, if they may entail a change in the conditions determined by the parties employment contract, the employer should comply with the rules provided for in Art. 74 of the Labor Code of the Russian Federation.

An approximate list of reasons that allow the employer to make an appropriate decision to change the terms of the employment contract is given in Part 1 of Art. 74 of the Labor Code of the Russian Federation and clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation", namely: changes in equipment and production technology, structural reorganization, improvement of jobs based on their certification. This list is open and is an estimate.

To the number organizational change can be attributed:

Changes in the management structure of the organization;

Introduction of forms of labor organization (team, rental, contract, etc.);

Changes in work and rest regimes;

Introduction, replacement and revision of labor standards;

Changes in organizational structure enterprises with a redistribution of the load on departments or on specific positions and, as a result, a change in wage systems.

Technological changes in working conditions may include:

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 technical regulations.

There may be other reasons for changing the terms of an employment contract, but, apparently, they should be, firstly, similar to those named and, secondly, just as significant. It should be borne in mind that the decline in sales and deterioration financial position organizations are not considered by the courts as reasons allowing the employer in accordance with Art. 74 of the Labor Code of the Russian Federation to change the terms of the employment contract. The courts point out that such circumstances do not indicate changes in the organizational and technological working conditions (see the Ruling of the Moscow Regional Court dated September 14, 2010 in case N 33-17729, Review of the cassation practice of the Supreme Court of the Komi Republic in civil cases of May 2009).

It is important to note that specific organizational and technological changes must be documented.

2. Changing the terms of the employment contract due to changes in organizational or technological working conditions

In this case, the employer is always the initiator of changing the terms of the employment contract with the employee. It must be emphasized that changes to the employment contract initiated by the employer cannot affect the conditions that determine the labor function of the employee.

Questions about what conditions of an employment contract and under what circumstances can be changed have always been debatable. Moreover, when determining these conditions in practice, employers often make mistakes that lead to litigation with employees in the future.

If it becomes necessary to change the employment contract with the employee due to organizational or technological changes in working conditions, the employer should act in accordance with Art. 74 of the Labor Code of the Russian Federation. The requirements specified in it are mandatory for the employer to fulfill. Thus, the employer is obliged to notify the employee in writing of the entry into force of the relevant changes no later than two months before the expected date of their introduction, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws. In particular, the employer individual is obliged to send an appropriate warning to the employee at least two weeks in advance - 14 days (Article 306 of the Labor Code of the Russian Federation), and the employer - religious organization at least seven calendar days(Article 344 of the Labor Code of the Russian Federation).

In practice, quite often the question arises of calculating the two-month notice period for changing the terms of an employment contract. To answer it, you need to refer to Art. 14 of the Labor Code of the Russian Federation. According to this article, the period of time with which the Labor Code of the Russian Federation connects the termination labor rights and duties, begins on the next day after the calendar date, which determined the end labor relations. For example, if the employer warned the employee about changing the employment contract on May 10, respectively, the calculation of the two-month period began from next day, i.e. from May 11, therefore, it will be possible to dismiss an employee no earlier than July 10.

If the employee for some reason does not agree to continue working in the new conditions, the employer is obliged to immediately offer him (also in writing and against signature) other work available in the area (vacant position) corresponding to the state of health of the employee, which he can perform with taking into account qualifications, and in the absence of such - any lower or lower paid position. Such proposals may be sent in the form of a list of vacancies.

If the employee refuses to continue working in the new conditions and disagrees with the transfer to a vacant position (or in the absence of vacancies), the employment contract with him is terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

It should be remembered: the dismissal of an employee in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in case of violation by the employer of the procedure for notifying the employee about upcoming changes in the terms of the employment contract determined by the parties, as well as non-confirmation that the employer offered the employee vacant positions(work), is the basis for the restoration of the latter at work (Determination of the St. Petersburg City Court dated 07.09.2009 N 11899).

3. The procedure for changing the terms of the employment contract determined by the parties at the initiative of the employer

3.1. Registration of the introduced changes

The employer issues an order (instruction) on amendments to the employment contract introduced after the expiration of the notification period (but not earlier than two months after the employee was notified in writing) indicating the reasons that served to change the terms of the employment contract determined by the parties.

3.2. Notification of employees about the introduced changes

The employer is obliged to notify employees who are affected by the introduced changes in writing no later than two months before their introduction (the employer is an individual in accordance with Article 306 of the Labor Code of the Russian Federation at least two weeks (14 days) in advance, and the employer is a religious organization not less than seven calendar days in accordance with Article 344 of the Labor Code of the Russian Federation). For this purpose, the employer acquaints employees with this order against signature or sends a separate written notice, which should contain information not only about the nature of the changes, but also about their causes.

Since the form of notification is not established by law, the employer must determine for himself how to notify the employee in writing about the upcoming changes and the reasons that caused them.

To avoid labor disputes it is recommended to send employees a specially prepared notice containing the reasons for the changes being made, the rights and obligations of the employee during the notice period, the timing of the decision by the employee and the consequences of his consent or refusal to continue working in the new conditions.

The notice must necessarily indicate the reasons for changing the terms of the employment contract. There is a court decision in which the court recognized the procedure for changing the terms of an employment contract as illegal, since, along with other violations, the notice lacked information about the reasons for the relevant changes (see Ruling of the Moscow City Court dated 07/01/2010 in case N 33-19700).

The document should also reflect the nature of the upcoming changes. Otherwise, the court may recognize that the employee was not properly notified (The cassation ruling of the Supreme Court of the Udmurt Republic dated May 30, 2011 in case N 33-1880 / 11).

It should be borne in mind that the legislator specifies only the minimum period for a warning (two months), there is no maximum period. However, it is intended that the notice period should not be too long. Such behavior of the employer in the event of a dispute may be regarded by the inspection authorities or the court as an abuse of the right.

It should also be noted that the legislator does not require notification of employees about upcoming changes in the terms of employment contracts in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, against signature (as, for example, is done in part 2 of article 180 of the Labor Code of the Russian Federation). This, at first glance, simplifies the notification procedure, since it is not required to receive written confirmation of the fact that the notification was sent to the employee. However, as practice shows, the absence of an employee’s signature confirming the fact that he was given a notification of upcoming changes, in the event of disputes regarding the legality of dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation is interpreted in favor of the employee.

The best solution would be to draw up a notice in two copies, one of which is issued to the employee against signature, and the second remains with the employer (for example, in the personnel department). If the employer, in accordance with the notification form, has provided that the employee must express his decision directly in the notification (in a specially designated place), the copy issued to him is returned to the personnel department. The document management system in the organization may provide that the decision of the employee about the upcoming changes should be expressed in a separate document. In this case, the employer should develop an application form or prepare an approximate sample that the employee will be guided by when compiling his application.

In the notice, it is advisable to establish a period during which the employee needs to decide on his decision to work in the new conditions.

If the employee refuses to certify familiarization with the upcoming changes with his signature in the notification, the employer must draw up an appropriate act.

3.3. Offer of vacancies in case of refusal of the employee to work in the new conditions

If the employee refuses to work in the new conditions, the employer is obliged in writing to offer him another vacant position available to the organization in the given locality, corresponding to the qualifications of the employee. If there are no such posts in staffing, the employer must offer another lower position or lower-paid work that the worker can perform, taking into account the state of his health.

In order to comply with this requirement, Art. 74 of the Labor Code of the Russian Federation, it is necessary to offer the employee a list of vacant positions containing, in addition to the name of the positions, a description labor function for each of them and the terms of remuneration. At the same time, the employer must offer vacancies within the entire two-month notice period.

It should also be borne in mind that when offering such positions, the employer is not entitled to conduct interviews to verify business qualities the employee, since the offered vacancies must initially correspond to the qualifications of the employee. Otherwise, it would be contrary to Art. 74 of the Labor Code of the Russian Federation (see the Ruling of the Moscow City Court dated July 1, 2010 in case No. 33-19700).

The employer is obliged to offer the employee work in another locality only if it is provided for collective agreement agreements, employment contracts. It seems that this is possible in organizations that have separately located structural subdivisions (branches, representative offices and other separate structural subdivisions) outside the administrative-territorial boundaries of the corresponding settlement.

4. Results of the procedure for introducing changes in working conditions

4.1. The employee agrees to change the terms of the employment contract

Upon receipt from the employee of the consent to continue working in the new conditions, a written agreement (additional agreement to the employment contract) is concluded between the employee and the employer, which establishes new (modified) conditions of the employment contract. On its basis, the personnel department prepares an order (instruction) to change the terms of the employment contract determined by the parties.

4.2. The employee refuses to amend the terms of the employment contract, but agrees to the transfer

If the employee refuses to continue working under the new conditions, but agrees to the transfer, in accordance with the agreement reached, the parties sign an additional agreement to the employment contract on the transfer of the employee to a position from the list of vacancies offered by the employer and the employer draws up the transfer by order (instruction) in accordance with Art. 72.1 of the Labor Code of the Russian Federation.

Relevant information is also entered into the T-2 personal card (approved by the Decree of the State Statistics Committee of 01/05/2004 N 1) and the work book of the employee.

4.3. The employee does not agree to change the terms of the employment contract, nor to the transfer

If the employee refuses to continue working in the new conditions, as well as from another job offered to him or there are no vacancies in the organization, the employment contract after the expiration of the notice period is terminated on the basis of paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

When employees are dismissed on this basis, they are paid, in addition to the final settlement and compensation for unused vacation severance pay in the amount of two weeks of average earnings (part 3 of article 178 of the Labor Code of the Russian Federation).

5. Consequences of incorrect application of the provisions of Art. 74 of the Labor Code of the Russian Federation or registration of ongoing organizational or technological changes in working conditions

The employer must be prepared to defend his position in court. In the event of a dispute about the legality of terminating an employment contract with an employee, the employer will be required to prove the impossibility of maintaining its previous conditions. According to Art. 56 Code of Civil Procedure of the Russian Federation and paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" the obligation to prove the existence legal basis dismissal of an employee is the responsibility of the employer.

Thus, the consequences of the incorrect application of the norms of Art. 74 of the Labor Code of the Russian Federation, including the subsequent dismissal of an employee, may be as follows:

If the existence of organizational or technological changes in working conditions, which led to the impossibility of maintaining the previous terms of the employment contract, is proven, but the employee is dismissed under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation without a two-month notice about a change in the terms of the employment contract, the court, when considering a dispute, may change the date of dismissal to the day the two-month notice period expires. If the employee was warned about changes in the terms of the employment contract, but dismissed due to the introduction of new working conditions before the expiration of the two-month period, the court may change the date of dismissal, taking into account the time remaining before the expiration of the two-month notice period. During the period for which the term of the employment contract has been extended due to a change in the date of its termination, the employer is obliged to reimburse the employee for the average salary;

If the employer fails to prove that there are good reasons why the previous terms of the employment contract could not be maintained, the employee, upon his application, is subject to reinstatement at work by the court and the employer is charged with the average earnings for the entire time of forced absenteeism. In addition, in favor of the employee, the employer may be charged compensation for moral damage (the amount is established by the court) and reimbursement of expenses for the services of his representative (Article 100 of the Code of Civil Procedure of the Russian Federation);

If, at the initiative of the employer, the terms of the employment contract were unilaterally changed in the direction of worsening the position of the employee compared to the previous conditions and the employee went to court to declare such changes illegal, and in court the employer could not prove a causal relationship between organizational or technological changes in conditions labor and a change in the terms of the employment contract, the employer will have to maintain the previous terms of the employment contract, and if during the period of validity of the changed conditions the employee was paid less than the previous salary, pay the employee the lost earnings, taking into account the fine under Art. 236 of the Labor Code of the Russian Federation based on 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

In addition to the above violation of the rules labor law entails bringing the organization and its head to administrative responsibility and applying to them the appropriate sanctions provided for in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, namely the imposition of a fine:

On the officials- in the amount of 1000 to 5000 rubles;

For an employer-entrepreneur - also from 1000 to 5000 rubles. or suspension of its activities for up to 90 days;

For legal entities - from 30,000 to 50,000 rubles. or suspension of activities for up to 90 days.

6. The introduction of part-time work in the event of a threat of mass layoffs due to changes in organizational or technological working conditions

6.1. Mass layoff criteria

Article 74 of the Labor Code of the Russian Federation gives the employer the right to unilaterally introduce a part-time regime if a change in organizational or technological working conditions may lead to mass dismissal of employees. When introducing such a regime, the opinion of the trade union should be taken into account (if there is a trade union organization at the enterprise). The criteria for mass dismissal are established by industry agreements (part 1 of article 82 of the Labor Code of the Russian Federation).

For example, according to the Industry Agreement on Railway Transport Organizations for 2011-2013, dismissal is considered massive when the number or staff is reduced by 5 or more percent of employees of an organization, branch, other structural unit within 90 calendar days.

The industry agreement on organizations of the rocket and space industry of the Russian Federation for 2011-2013 states that the criteria for mass layoffs are the number or percentage of employees laid off due to the liquidation of enterprises, institutions, organizations or a reduction in the number or staff of employees for a certain calendar period.

Such criteria include a reduction in the number or staff of employees in the amount of:

50 or more people within 30 calendar days, but not more than 10 percent of the number of employees in the organization;

200 or more people within 60 calendar days, but not more than 10 percent of the number of employees in the organization;

500 or more people within 90 calendar days, but not more than 10 percent of the number of employees in the organization.

The Moscow tripartite agreement for 2012 between the Government of Moscow, Moscow associations of trade unions and Moscow associations of employers dated November 30, 2011 established that the criteria for mass layoffs are the indicators of the number of dismissed workers for a certain period:

Dismissal within 30 calendar days of more than 25 percent of employees of the total number of employees in the organization;

Dismissal of employees in connection with the liquidation of an organization of any organizational and legal form;

Reducing the number or staff of the organization's employees in the amount of:

50 or more people within 30 calendar days;

200 or more people within 60 calendar days;

500 or more people within 90 calendar days.

If there is no agreement in a particular industry or does not apply to this employer, then the criteria for mass layoffs should be determined on the basis of clause 1 of the Regulations on the organization of work to promote employment in conditions of mass layoffs (approved by Resolution of the Council of Ministers of the Russian Federation of 05.02.1993 N 99 ). According to this document, a dismissal is considered massive with a reduction:

50 people or more within 30 calendar days;

200 people or more within 60 calendar days;

500 people or more within 90 calendar days;

One percent of the total number of employees within 30 calendar days in regions with total strength less than five thousand people.

6.2. The term for establishing the part-time regime

The law establishes a deadline for which part-time work can be introduced - six months. Within its limits, a specific duration of working time (week, day, shift) is established. After the expiration of the period for which the part-time working regime was introduced, employees must be transferred to the previous regime.

The abolition of the part-time regime before the expiration of the period for which it was established is carried out taking into account the opinion of the elected body of the primary trade union organization.

6.3. Peculiarities of establishing part-time work regime

From 01/01/2009, the employer is obliged to inform the employment service about the introduction of part-time work, indicating the reasons for making such a decision, the number of employees in this mode and the duration of part-time work on average for the organization (clause 2, article 25 of the Law of the Russian Federation of 04/19/1991 N 1032-1 "On employment in the Russian Federation", letter of Rostrud dated 17.05.2011 N 1329-6-1).

According to Art. 19.7 of the Code of Administrative Offenses of the Russian Federation, failure to submit or untimely submission to the employment service of information on the introduction of part-time work, as well as their submission in a distorted form, entails the imposition of an administrative fine:

For officials - from 300 to 500 rubles;

For legal entities - from 3000 to 5000 rubles.

In addition, information on underemployment of workers should be submitted monthly to the statistical authorities. Form of federal statistical observation N P-4 (NZ) "Information on part-time employment and the movement of workers" with instructions for filling it out was approved by Order of the Federal State Statistics Service dated August 19, 2011 N 367. Information in the form must be submitted no later than the 3rd day after the reporting month.

If a legal entity has separate subdivisions, the form is filled out both for each separate subdivision and for a legal entity without these subdivisions. In case when entity(its separate subdivision) does not carry out activities at its location, the form is provided at the place of actual implementation of its activities (clause 1 of the Instructions for filling out the form of federal statistical observation).

The transfer of employees to part-time work must be motivated and justified. A drop in production volumes, a deterioration in the financial situation and other economic reasons in themselves do not give the employer the right to unilaterally change the work and rest regimes of employees (see the Ruling of the Moscow Regional Court of September 28, 2010 in case N 33-18600). Such changes must be preceded by appropriate procedures, the obligation to conduct which is provided for by Art. 74 of the Labor Code of the Russian Federation.

In order to recognize the legality of the introduction of part-time work, in the event of a dispute, the employer will be required to prove the following:

1) the relationship between changes in organizational or technological working conditions and the possibility of mass layoffs of workers;

2) the purpose of introducing a part-time working week regime is actually to preserve jobs.

The employer has the right to introduce the part-time working regime for up to six months repeatedly, i.e. whenever the organizational or technological working conditions change, which may lead to mass layoffs of workers. In this case, the employer will have to repeat the procedures provided for in Art. 74 of the Labor Code of the Russian Federation. In particular, employees must be notified in writing of changes in the terms of an employment contract no later than two months in advance. It is also necessary to take into account the opinion of the elected body of the primary trade union organization(if any) and send a corresponding message to the employment service authorities.

6.4. Consequences of an employee's refusal to work part-time

The employee has the right to refuse to continue working on a part-time (shift) basis. In this case, the employment contract with him is terminated under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation after the expiration of the warning period for the introduction of part-time work, i.e. according to the rules for reducing the staff or the number of employees of the organization. According to Art. 74 of the Labor Code of the Russian Federation, the employee must be provided with all the guarantees and compensations provided for persons dismissed due to a reduction in staff or the number of employees. Upon dismissal on this basis, the employer is obliged to notify the employee about this two months in advance (part 2 of article 180 of the Labor Code of the Russian Federation).

The question remains whether the employer must notify the employee two months before the reduction in staff or number after the expiration of the two-month notice period for the introduction of part-time work (i.e., a total of four months must elapse before the termination of the employment contract) or he can go on a simplified way to reduce the number or staff, i.e. without additional notice to the employee about the reduction. On this issue, the opinions of official representatives of Rostrud differ. It must be borne in mind that part-time work cannot be extended to this employee due to his refusal.

It is possible to recommend that employers, simultaneously with warning employees two months in advance about the introduction of part-time work, fulfill the obligation provided for in Art. 180 of the Labor Code of the Russian Federation, i.e. in the notice of changes in the terms of the employment contract, warn the employee about the possibility of his dismissal in two months under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation in case of refusal to continue work in the new conditions.

During the employment relationship, especially if employees work for the same employer enough long time, arise various situations in which working conditions change. Can employees refuse to continue working in the changed conditions? And what are the consequences of such a refusal?

The basis of labor relations is an employment contract concluded between the employee and the employer. Its content is the terms agreed by the parties. These are the terms of the law. In practice, the situation is different: in fact, the employer offers certain working conditions (such as the regime of working hours and rest time, the level of remuneration, etc.), and the employee, getting a job with this particular employer, agrees with the conditions offered to him. In the same way, an employer interested in this particular job candidate is ready to accept and fix in the employment contract the conditions that such a “valuable” employee asks for.

The main thing is that the terms of the employment contract established when hiring completely suit the candidate, otherwise he would not have agreed to work for this employer. If during the employment relationship any terms of the employment contract, including the condition of the labor function, change by agreement of the parties, then in this case it can be said that the employee agrees to work in changing conditions, and in some situations he himself the same and initiates such changes, for example, by asking the employer to transfer him to another permanent job or change his working hours.

And what happens when the terms of the employment contract determined by the parties change at the initiative of the employer due to some objective reasons? It is obvious that the employee, accustomed to the old conditions, has every right to disagree with such changes.

There may also be situations that, it would seem, almost do not affect the interests of the employee, however, they do not suit him. We are talking about cases of renaming, reorganization, change of jurisdiction or change of ownership of the organization's property.

All these cases and the consequences of the employee's disagreement to continue working in the changed conditions will be discussed in our article.

CHANGING WORKING CONDITIONS

In the process of labor activity, it is possible to change both working conditions and the terms of the employment contract specifically established at the conclusion of the employment contract (information about the parties to the contract; mandatory and additional conditions).

A change in working conditions should be considered as a change in the social and production factors in which the labor activity of employees is carried out, caused by a change in the norms of labor legislation (including legislation on labor protection) and other regulatory legal acts containing labor law norms; social partnership agreements concluded at the federal, interregional, regional, sectoral (intersectoral), territorial levels; collective agreement valid for a particular employer; local regulations; agreements between employer and employee. Referring directly to the provisions of Art. 117, 147, 2161, 220 of the Labor Code of the Russian Federation, etc., then working conditions are considered as:

• set of technological factors of labor production environment;
• appropriate conditions for the direct organization of the employee's labor activity;
• a complex of safety and labor protection factors for workers.

In itself, a change in working conditions, which does not entail changes in the terms of the employment contract determined by the parties, cannot lead to the employee's refusal to work in the new conditions.

In the summer, our organization will accept a new local normative act, providing for the introduction, replacement and revision of labor standards (production standards, time, population standards, etc.). What should be our actions in relation to workers whose working conditions actually change?

According to Art. 162 of the Labor Code of the Russian Federation, the introduction, replacement and revision of labor standards is fixed in local regulations adopted by the employer, taking into account the opinion of the representative body of workers, as well as in the collective agreement. The employer is obliged to notify the employee of the introduction of new labor standards no later than two months in advance. Accordingly, in the event that the employer has complied with all the requirements of the law:

a) lawfully adopted a local normative act, taking into account Art. 372 of the Labor Code of the Russian Federation,

b) notified the employee in a timely manner within two months, then the employee has a direct obligation to “fulfill the established labor standards” (Article 21 of the Labor Code of the Russian Federation).

Otherwise, the refusal of the employee without good reasons from doing job duties in connection with the change in the established order of labor standards (Article 162 of the Labor Code of the Russian Federation) refers to violations labor discipline which may lead to adverse consequences for the employee in the form of the application of measures disciplinary action. The Plenum of the Supreme Court of the Russian Federation in paragraph 35 of the resolution of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - Resolution No. 2) explains the essence of this violation.

So, non-performance by an employee without good reason is non-performance of labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, rules of internal work schedule, job descriptions, regulations, orders of the employer, technical rules etc.). Such violations, in particular, include the employee's refusal to perform labor duties without good reason in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this agreement, to comply the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

At the same time, the Supreme Court of the Russian Federation emphasizes that the refusal to continue work in connection with a change in the terms of the employment contract determined by the parties is not a violation of labor discipline, but serves as the basis for terminating the employment contract under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for by Art. 74 of the Labor Code of the Russian Federation.

Under certain circumstances, a change in working conditions may entail a change in the terms of the employment contract. By general rule the terms of the employment contract cannot be changed unilaterally - the same procedure must be followed here as when concluding it, i.e. mutual consent of the parties, with the exception of cases provided for by the Labor Code of the Russian Federation (in particular, in Articles 722 and 74 of the Labor Code RF).

HR Dictionary

Note! According to Art. 72 of the Labor Code of the Russian Federation, a change in the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract. In this case, an agreement to change the terms of the employment contract determined by the parties must be executed in writing.

Changing the terms of the employment contract, determined by the parties, is possible in the following forms:

1) transfer (permanent or temporary);

2) changing the terms of the employment contract determined by the parties, with the exception of the terms of the labor function.

When changing the terms of an employment contract at the initiative of the employer, it is necessary to follow the rules and procedures provided for in Art. 74 of the Labor Code of the Russian Federation. At the same time, changes in organizational or technological working conditions must be documented by the employer without fail. The Plenum of the Supreme Court of the Russian Federation in paragraph 21 of Resolution No. 2 specifically draws attention to the fact that the employer is obliged to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement jobs on the basis of their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation or the very change in the terms of the employment contract determined by the parties cannot be recognized as legal.

Is an employee obliged to agree to a change in the terms of an employment contract if this is due to a change in organizational or technological working conditions?

Changing the terms of the employment contract determined by the parties due to changes in organizational or technological working conditions is, of course, unfavorable for the employee, and he has the right not to agree to continue working with a particular employer.

In particular, the employee may refuse the work offered by the employer, and in this situation, the employment contract must be terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. If the employee does not agree to continue labor activity in the mode of the established part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation with the payment of appropriate guarantees and compensations provided for in Parts 1 and 2 of Art. 178 of the Labor Code of the Russian Federation.

At the same time, it should be noted that in cases of changes in technological or organizational working conditions, the employee simply does not have a choice of any other alternative actions: he either must agree to work in new conditions, or the employment contract will be terminated in one way or another in the manner established by labor legislation.

ORGANIZATIONAL CHANGES

The continuation of labor relations in the event of a change in the owner of the organization's property, a change in the organization's jurisdiction, its reorganization is regulated by Art. 75 of the Labor Code of the Russian Federation. Please note: as a general rule, these processes cannot serve as a basis for terminating employment contracts with employees.

Change of ownership of the organization's property

Note! Termination of the employment contract under paragraph 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation is possible only in the event of a change in the owner of the property of the organization as a whole

An exception to the above rule is the ability of the new owner to terminate employment relations with the head of the organization, his deputy and the chief accountant on the grounds provided for in paragraph 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The specified categories of employees cannot be dismissed on the above grounds when the jurisdiction (subordination) of the organization changes, unless there is a change in the ownership of the organization's property.

Employees of an organization that has a new owner of property, who is authorized to establish new working conditions in the future, have the right to continue working on the terms of previously concluded employment contracts, and only in case of refusal to work after a change in the owner of the property of the organization, the employment contract can be terminated on the basis of clause 6 Part 1 Art. 77 of the Labor Code of the Russian Federation, that is, the actual initiator of the termination of the employment contract is the employee.

Renaming an organization

The name of the employer indicated in the text of the employment contract must correspond to the name of the legal entity or individual entrepreneur received during state registration.

By the way

As a result, when changing the name of the organization, it becomes necessary to make the appropriate changes:

• in the texts of employment contracts concluded with employees;
• in the workbooks of employees.

Change of jurisdiction or reorganization of the organization

Quite complex problems in practice arise in connection with the reorganization or change of jurisdiction.

If the employee refuses to continue working in cases of a change in jurisdiction or reorganization, the employment contract is terminated on the grounds provided for in paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

In law enforcement activities, it is necessary to distinguish between the procedures of reorganization and liquidation of an organization, since they entail different consequences.

By the way

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 3, 2008 No. 78-B08-5, the dismissal of citizen S. under paragraph 1, part 1 of Art. 81 of the Labor Code of the Russian Federation with the subsequent reinstatement of her at work and in her previous position.

In substantiating her claim, S. referred to the fact that the organization was not liquidated, but only reorganized. The Supreme Court found that the liquidation of the organization was confirmed by the Certificate of making an entry in the Unified State Register of Legal Entities. However, after that, a new legal entity was created with the same name and only registered with a new number in the Unified State Register of Legal Entities. At the same time, the goals, objectives, organizational and legal form, structure, staff, property and functions of the newly created legal entity remained unchanged. The Supreme Court held that, in accordance with Art. 61 and 62 of the Civil Code of the Russian Federation, the liquidation of a legal entity always entails its termination without the transfer of rights and obligations by way of succession to other persons. At the same time, according to part 5 of Art. 58 of the Civil Code of the Russian Federation, when a legal entity of one type is transformed into a legal entity of another type (change in organizational and legal form), all rights and obligations of the reorganized legal entity are transferred to the newly established legal entity.

In the above example, it was the reorganization that actually took place - all the rights and obligations of the previously existing organization were completely transferred to the newly created organization, and the reorganization is not the basis for termination for the dismissal of an employee at the initiative of the employer.

So, in the event that the employer performs all the procedures established by labor legislation for changing working conditions and the terms of an employment contract with a specific employee, then the employee is obliged to perform the labor function in the current situation and in the new conditions. But if the employee does not agree to continue working in the new conditions, then the employer has no choice but to terminate the employment contract on the appropriate basis. The list of situations in which the employee has the right to choose, and the consequences of the employee’s consent or disagreement to continue working, we have given in table.

Cases and consequences of changing working conditions

By the way

An approximate list of reasons that allow the employer to make an appropriate decision to change the terms of the employment contract is given in Part 1 of Art. 74 of the Labor Code of the Russian Federation and clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", namely: changes in equipment and production technology, structural reorganization, improvement of jobs based on their certification . This list is open and is estimated.
Organizational changes may include:

• changes in the management structure of the organization;
• introduction of forms of labor organization (brigade, rental, contract, etc.);
• change in work and rest regimes;
• introduction, replacement and revision of labor standards;
• changes in the organizational structure of the enterprise with a redistribution of the load on departments or on specific positions and, as a result, a change in wage systems.

Technological changes in working conditions may include:

• 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 technical regulations.

There may be other reasons for changing the terms of an employment contract, but, apparently, they should be, firstly, similar to those named and, secondly, just as significant. It should be borne in mind that the decline in sales and the deterioration of the financial situation of the organization are not considered by the courts as reasons allowing the employer in accordance with Art. 74 of the Labor Code of the Russian Federation to change the terms of the employment contract. The courts point out that such circumstances do not indicate changes in the organizational and technological working conditions (see the Ruling of the Moscow Regional Court dated September 14, 2010 in case N 33-17729, Review of the cassation practice of the Supreme Court of the Komi Republic in civil cases of May 2009).
However, in our opinion, one cannot completely ignore the economic and financial conditions in which the employer may be. It is financial and economic reasons that often play a decisive role in
survival of an enterprise, organization or business. It is important to note that specific organizational, economic and technological changes must be documented.
The initiator in changing the terms of the employment contract with the employee in these cases is always the employer. It must be emphasized that changes to the employment contract initiated by the employer cannot affect the conditions that determine the labor function of the employee. Questions about what conditions of an employment contract and under what circumstances can be changed have always been debatable. Moreover, when determining these conditions in practice, employers often make mistakes that lead to litigation with employees in the future.
If it becomes necessary to change the employment contract with the employee due to organizational or technological changes in working conditions, the employer should act in accordance with Art. 74 of the Labor Code of the Russian Federation. The requirements specified in it are mandatory for the employer to fulfill. So, the employer is obliged to notify the employee in writing of the entry into force of the relevant changes no later than two months before the expected date of their introduction, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws. In particular, the employer is an individual in accordance with Art. 306 of the Labor Code of the Russian Federation is obliged to send an appropriate warning to the employee at least two weeks (14 days) in advance.
In practice, quite often the question arises of calculating the two-month notice period for changing the terms of an employment contract. To answer it, you need to refer to Art. 14 of the Labor Code of the Russian Federation. According to this article, the period with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the day after the calendar date that determines the end of the employment relationship. For example, if the employer warned the employee about changing the employment contract on May 10, respectively, the calculation of the two-month period began on the next day, i.e. from May 11, therefore, it will be possible to dismiss an employee no earlier than July 10.
If the employee for some reason does not agree to continue working in the new conditions, the employer is obliged to immediately offer him (also in writing and against signature) other work available in the area (vacant position) corresponding to the state of health of the employee, which he can perform with taking into account qualifications, and in the absence of such, any lower or lower paid position. Such proposals may be sent in the form of a list of vacancies.
If the employee refuses to continue working in the new conditions and disagrees with the transfer to a vacant position (or in the absence of vacancies), the employment contract with him is terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
It should be remembered: the dismissal of an employee in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, in case of violation by the employer of the procedure for notifying the employee about upcoming changes to the terms of the employment contract determined by the parties, as well as non-confirmation that the employer offered the employee vacant positions (job), is the basis for reinstating the latter at work (Determination of the St. Petersburg City Court of 07.09 .2009 N 11899).

Kanunnikov A.B. Chief
department - chief state inspector
Labor of the State Labor Inspectorate
in the Omsk region,
PhD in Law
Belyaev S.G.- deputy
head of the State Inspectorate
labor in the Omsk region

537 Alla Nurtynova

When an employer wants to change the terms of payment for an employee’s work or his mode of work, you first need to try to negotiate with him. If the employee agrees, it is possible to sign an additional agreement in one day. There is no need to wait 2 months to start working in the new conditions. But if it is not possible to convince the employee, then a lengthy procedure cannot be dispensed with.

Article 74 of the Labor Code of the Russian Federation allows the employer to change the terms of the employment contract unilaterally.

But as practice shows, the application of this rule is quite complicated. This is despite the fact that Art. 74 of the Labor Code of the Russian Federation uses wording that, it would seem, gives employers freedom of action. For example, under organizational changes, companies often bring down the adjustment of the staffing table in terms of reducing wages for a number of positions. But the courts consider this approach formal and satisfy the claims of employees who do not agree with the reduction in income. The loss awaits the company even when the labor function of the employee was affected in the course of the measures. Its change is guaranteed to lead to the cancellation of the decision of the employer. In addition, it will not always be justified to apply Art. 74 of the Labor Code of the Russian Federation when canceling allowances and other benefits due to an employee for harmful conditions labor. They cannot be canceled, explaining this only by conducting a special assessment in the company. Removal of benefits is allowed only when it is confirmed that conditions in the workplace have actually improved.

The transition to new equipment is a reason to change the terms of the contract

Employers often believe that in order to comply with the procedure for changing the terms of an employment contract, it is enough to give the employee a notice. But it's not. First, you need to check whether organizational and (or) technological changes in working conditions are really taking place in the company. Without such grounds, it is impossible to start notifying employees. You should also make sure that the adjustment of the provisions of the employment contract is directly related to such changes, and at the same time it is impossible to maintain the previous working conditions of the employee.

If at least one of these conditions is not observed, the courts, as a rule, recognize the application by the employer of Art. 74 of the Labor Code of the Russian Federation. This is confirmed by the rulings of the St. Petersburg City Court dated September 7, 2009 No. 11899, the Leningrad Regional Court dated November 23, 2011 No. 33-5730/11, the Magadan Regional Court dated April 2, 2014 in cases No. 2-14/2014, 33-261/2014 . The basis for such decisions is paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 (hereinafter - Resolution No. 2). It explains the principles that make it possible to recognize a change in the terms of an employment contract as unlawful. Examples of organizational and technological changes are contained in Art. 74 of the Labor Code of the Russian Federation and clause 21 of Decree No. 2. These include changes in equipment and production technology, structural reorganization of production, improvement of jobs based on their certification (it was replaced by a special assessment).

The courts refer to changes in organizational or technological working conditions:

• structural reorganization, including the merger of companies, the change of the location of the division, the workplace, the organization of new divisions with the redistribution of the subordination of employees and official duties(determinations of the Supreme Court of the Republic of Mordovia dated March 26, 2015 in case No. 33-597 / 2015, the Chelyabinsk Regional Court dated March 5, 2015 in case No. 11-2103 / 2015, the Moscow City Court dated March 25, 2015 No. 4g / 8-571);
• changing working time regimes in order to improve production processes (appellate rulings of the Kaliningrad Regional Court of October 23, 2013 in case No. 33-4694/2013, of the St. Petersburg City Court of December 4, 2014 No. 33-18721/2014);
• changes in operating rules and the introduction of new production equipment (determination of the Moscow Regional Court dated September 21, 2010 in case No. 33-18182) and others. So, it will be possible to prove the legitimacy of adjusting the terms of an employment contract only if the company has undergone organizational and technological changes in working conditions.

In the event of a dispute, the relationship of these events will be proved by a written feasibility study, memos, orders and other documentation. Their absence will significantly complicate the process and may lead to satisfaction of the employee's requirements for reinstatement or for the recognition of the introduced changes as illegal.

When can I change the terms of the employment contract*

1. Presence of organizational and (or) technological changes in working conditions
2. The relationship between these changes and adjustments to the employment contract
3. Inability to maintain the previous terms of the employment contract in connection with these changes

*requires a combination of all features

The results of a special assessment do not always become the reason for changing the terms of the contract

for harmful and dangerous conditions work at the workplace, employees are entitled to benefits (surcharge, additional leave or reduced hours). Previously, employers had to provide all three guarantees, but now the amount of benefits depends on the degree of "harmfulness" of the workplace. In this regard, it is not clear whether the employer has the right to use the results of the special assessment to cancel compensation unilaterally. After all, voluntarily signing an agreement on reducing the amount of guarantees with employees will not always work.

So, changes to employment contracts in accordance with Art. 74 of the Labor Code of the Russian Federation on the basis of the results of a special assessment will not always be justified. Assume that working conditions remain harmful, but the subclass of working conditions is reduced solely as a result of the application of a new special assessment methodology without any changes in the workplace. For example, in connection with the exclusion from the list of harmful factors of the lack of natural light. In such a situation, use Art. 74 of the Labor Code of the Russian Federation and it is risky to cancel benefits.

On the one hand, a revision of compensation for harmful effects is possible based on the results of a special assessment, subject to a decrease in the final class (subclass) of working conditions (paragraph 12 of the Information dated October 28, 2014 “Typical questions and answers on special evaluation working conditions” (as amended on October 29, 2014)). There is no mention of the mandatory presence of real improvements. However, this opinion of the Ministry of Labor should be considered taking into account the provisions of the Labor Code of the Russian Federation and regulations relating to special assessment. From the standpoint of Art. 74 of the Labor Code of the Russian Federation in the described situation, one can hardly talk about any changes in working conditions. Part 3 Art. 15 of the Federal Law of December 28, 2013 No. 421-FZ also focuses on the fact that compensations for harmfulness, which were actually provided to employees as of January 1, 2014, cannot be canceled or reduced if the working conditions at the workplace that were grounds for the imposition of compensatory measures.

Therefore, the safest option is with a real improvement in conditions at the workplace, confirmed by a decrease in the hazard subclass based on the results of a special assessment. After replacing or upgrading equipment, redistributing the load, etc. the employer has every reason to apply Art. 74 of the Labor Code of the Russian Federation. In practice, such changes do occur, given that several years pass from the moment of certification of workplaces to the completion of a special assessment, during which production processes a lot is changing.

The decrease in financial indicators is not an independent basis for changing the contract

In conditions of economic instability, the question of the legitimacy of changing employment contracts due to a decrease in financial and production indicators companies. As a rule, we are talking about a unilateral reduction in the salary of an employee.

The courts are generally negative about such actions of the employer. So, in one case, due to the lack of work for an employee (the counterparty did not conclude a new contract), the employer, instead of reducing the staff, offered to transfer him to another position. As a result, the court recognized the dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation illegal (appellate ruling of the Moscow City Court dated December 22, 2014 in case No. 33-41558/14).

In another case, the court recognized illegal actions an employer who initiated the procedure for changing the terms of an employment contract due to a decrease in the scope of work without any organizational or technological changes in working conditions (appeal ruling of the Moscow City Court dated April 6, 2011 in case No. 33-7025).

The actions of the employer to change the size and structure of wages solely in connection with the difficult economic situation are also recognized by the courts as illegal (appellate ruling of the Arkhangelsk Regional Court dated February 4, 2013 in case No. 33-0671 / 2013).

It should be noted that the use of Art. 74 of the Labor Code of the Russian Federation for the purpose of reducing the staff is a fairly common mistake by employers.

For example, in a case considered by the Krasnoyarsk Regional Court, the employer decided to abolish the position held by the employee and offered him to take another position with a different name. To confirm the reorganization of production, a new staffing table was prepared. However, according to the court, these actions testified to a change in the labor function determined by the contract, and it made an unequivocal conclusion in favor of the employee. The employer had no reason to warn the employee about changing the terms of the contract, offering another job and subsequent dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (appellate ruling of the Krasnoyarsk Regional Court dated March 17, 2014 in case No. 33-1619/2014).

Other courts also do not disregard the decisions of employers who disguise the reduction as a change in working conditions, and reinstate employees in their positions (appeal rulings of the Irkutsk Regional Court dated 09/09/2014 in case No. No. 33-7954/2015, dated March 26, 2015 in case No. 33-6327/2015).

The employer could not prove the existence of changes in organizational or technological working conditions in the case considered by the Supreme Court of the Russian Federation (determination of May 16, 2014 No. 5-KG14-14). The employee appealed against the dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the reason for which was disagreement with the renaming of the position. In addition, the employer planned to reduce job responsibilities and significantly reduce wages. The basis for such decisions was a change in staffing. The Supreme Court of the Russian Federation came to the conclusion that the exclusion from the staff list of one position and the simultaneous inclusion of another (with different functionality and earnings) indicates a reduction in staff. And, of course, in such a situation, we are not talking about changing the terms of the employment contract. As a result, the court found the actions of the employer illegal.

Changing the terms of the contract, the labor function must be left the same

Based on Art. 74 of the Labor Code of the Russian Federation, you can change any condition of the employment contract: working hours, place of work (including transfer to another city), wage conditions, etc. At the same time, it is not allowed to worsen the position of the employee in comparison with the established collective agreement and (or) agreement. However, under no circumstances should the labor function of an employee be changed (part 1, part 8, article 74 of the Labor Code of the Russian Federation). In other words, the storekeeper should be left with the same duties, and he should not be charged with cleaning the entire adjacent territory.

When an employer starts such large-scale events, he is most worried about the legitimacy of reducing the salaries of employees. Formally, Art. 74 of the Labor Code of the Russian Federation does not prohibit the employer from reducing wages, however, the courts generally have a negative attitude towards the situation when this decision is not related to changes in the duties of the employee (appeal ruling of the Tambov Regional Court dated 08.08.2012 in case No. 33-2048 / 2012).

Indeed, it is difficult to imagine that organizational and (or) technological changes in working conditions affect only wage conditions. In addition, it is necessary to take into account Part 1 of Art. 129 of the Labor Code of the Russian Federation, according to which wage employee depends on the complexity, quantity and conditions of the work performed.

Therefore, the impossibility of maintaining the previous level of remuneration in most cases can only be explained by a decrease in the volume of official duties, a decrease in the complexity and intensity of labor, and other similar reasons. If these circumstances are confirmed, then the employer's chances of successfully resolving the dispute are significantly increased (cassation ruling of the St. Petersburg City Court of February 27, 2012 No. 33-2768 / 2012).

When changing job responsibilities, you should make sure that the work function of the employee does not change. Arbitrage practice varies greatly depending on how much the change in job responsibilities has affected the essence of the labor function.

The labor function is understood as work according to the position in accordance with the staff list, profession, specialty, indicating the qualifications, the specific type of work assigned to the employee (part 2 of article 57 of the Labor Code of the Russian Federation). The concept of official duties is not disclosed in the law, however, as a rule, they are understood as those specific actions that the employee performs as part of the labor function. For example, the labor function of a “human resources specialist” implies the following job responsibilities: work with work books, registration of orders for admission, transfers, dismissal and vacations. Did the adjustment job description to a change in the labor function and whether the consent of the employee is required for such actions, the court will evaluate in each specific case (determination of the Constitutional Court of the Russian Federation of September 25, 2014 No. 1853-O). But it is hardly possible to talk about a change in the labor function for the position of “legal adviser”, if the obligation to conduct claims work was removed from among his duties for various reasons. A similar conclusion should be drawn in relation to a situation where job responsibilities are only specified.

According to the courts, the reduction in the volume of official duties is not a change in the labor function of the employee. This is confirmed by the rulings of the Yaroslavl Regional Court of July 19, 2012 in case No. 33-3711 / 2012, the Sverdlovsk Regional Court of February 11, 2014 in case No. 33-1893 / 2014, the Court of the Jewish Autonomous Region of October 17, 2014 in case No. 33-542 / 2014, of the Moscow City Court of November 14, 2011 in case No. 4g / 4-9268, of September 18, 2014 in case No. 33-17963 / 2014, of April 2, 2015 in case No. 33-6829 and others. But a significant change in job duties, especially associated with a change in the name of the position, with a high degree of probability will be recognized by the court as a change in the labor function.

When carrying out measures to change the organizational or technological working conditions, if they may entail a change in the terms of the employment contract determined by the parties, the employer should comply with the rules provided for in Art. 74 of the Labor Code of the Russian Federation.

An approximate list of reasons that allow the employer to make an appropriate decision to change the terms of the employment contract is given in Part 1 of Art. 74 of the Labor Code of the Russian Federation and clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", namely: changes in equipment and production technology, structural reorganization, improvement of jobs based on their certification . This list is open and is estimated.

Organizational changes may include:

• - changes in the management structure of the organization;
• - introduction of forms of labor organization (brigade, rental, contract, etc.);
• - change of work and rest regimes;
• - introduction, replacement and revision of labor standards;
• - changes in the organizational structure of the enterprise with a redistribution of the load on departments or on specific positions and, as a result, a change in wage systems.

Technological changes in working conditions may include:

• - 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 technical regulations.

There may be other reasons for changing the terms of an employment contract, but, apparently, they should be, firstly, similar to those named and, secondly, just as significant. It should be borne in mind that the decline in sales and the deterioration of the financial situation of the organization are not considered by the courts as reasons allowing the employer in accordance with Art. 74 of the Labor Code of the Russian Federation to change the terms of the employment contract. The courts point out that such circumstances do not indicate changes in the organizational and technological working conditions (see the Ruling of the Moscow Regional Court dated September 14, 2010 in case N 33-17729, Review of the cassation practice of the Supreme Court of the Komi Republic in civil cases of May 2009).

It is important to note that specific organizational and technological changes must be documented.

2. Changing the terms of the employment contract due to changes in organizational or technological working conditions

In this case, the employer always acts as the initiator in changing the terms of the employment contract with the employee. It must be emphasized that changes to the employment contract initiated by the employer cannot affect the conditions that determine the labor function of the employee.

Questions about what conditions of an employment contract and under what circumstances can be changed have always been debatable. Moreover, when determining these conditions in practice, employers often make mistakes that lead to litigation with employees in the future.

If it becomes necessary to change the employment contract with the employee due to organizational or technological changes in working conditions, the employer should act in accordance with Art. 74 of the Labor Code of the Russian Federation. The requirements specified in it are mandatory for the employer to fulfill. So, the employer is obliged to notify the employee in writing of the entry into force of the relevant changes no later than two months before the expected date of their introduction, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws. In particular, the employer is an individual in accordance with Art. 306 of the Labor Code of the Russian Federation is obliged to send an appropriate warning to the employee at least two weeks (14 days) in advance, and the employer is a religious organization at least seven calendar days in advance (Article 344 of the Labor Code of the Russian Federation).

In practice, quite often the question arises of calculating the two-month notice period for changing the terms of an employment contract. To answer it, you need to refer to Art. 14 of the Labor Code of the Russian Federation. According to this article, the period with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the day after the calendar date that determines the end of the employment relationship. For example, if the employer warned the employee about changing the employment contract on May 10, respectively, the calculation of the two-month period began on the next day, i.e. from May 11, therefore, it will be possible to dismiss an employee no earlier than July 10.

If the employee for some reason does not agree to continue working in the new conditions, the employer is obliged to immediately offer him (also in writing and against signature) other work available in the area (vacant position) corresponding to the state of health of the employee, which he can perform with taking into account qualifications, and in the absence of such - any lower or lower paid position. Such proposals may be sent in the form of a list of vacancies.

If the employee refuses to continue working in the new conditions and disagrees with the transfer to a vacant position (or in the absence of vacancies), the employment contract with him is terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

It should be remembered: the dismissal of an employee in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, in case of violation by the employer of the procedure for notifying the employee about upcoming changes to the terms of the employment contract determined by the parties, as well as non-confirmation that the employer offered the employee vacant positions (job), is the basis for reinstating the latter at work (Determination of the St. Petersburg City Court of 07.09 .2009 N 11899).

3. The procedure for changing the terms of the employment contract determined by the parties at the initiative of the employer

The employer issues an order (instruction) on amendments to the employment contract introduced after the expiration of the notification period (but not earlier than two months after the employee was notified in writing) indicating the reasons that served to change the terms of the employment contract determined by the parties.

The employer is obliged to notify employees who are affected by the introduced changes in writing and no later than two months before their introduction (the employer is an individual in accordance with Article 306 of the Labor Code of the Russian Federation at least 2 weeks (14 days), and the employer - religious organization at least 7 calendar days in advance in accordance with Article 344 of the Labor Code of the Russian Federation). To this end, the employer acquaints employees with this order against signature or sends a separate written notice, which should contain information not only about the nature of the changes, but also about their reasons.

Since the form of notification is not established by law, the employer must determine for himself how to notify the employee in writing about the upcoming changes and the reasons that caused them.

In order to avoid labor disputes, it is recommended to send employees a specially prepared notice containing the reasons for the changes being made, the rights and obligations of the employee during the notice period, the timing of the decision by the employee and the consequences of his consent or refusal to continue working in the new conditions.

The notice must necessarily indicate the reasons for changing the terms of the employment contract. There is a court decision in which the court recognized the procedure for changing the terms of an employment contract as illegal, since, along with other violations, the notice lacked information about the reasons for the relevant changes (see Ruling of the Moscow City Court dated 07/01/2010 in case N 33-19700).

The document should also reflect the nature of the upcoming changes. Otherwise, the court may recognize that the employee was not properly notified (The cassation ruling of the Supreme Court of the Udmurt Republic dated May 30, 2011 in case N 33-1880 / 11).

It should be borne in mind that the legislator specifies only the minimum period for a warning (two months), there is no maximum period. However, it is intended that the notice period should not be too long. Such behavior of the employer in the event of a dispute may be regarded by the inspection authorities or the court as an abuse of the right.

It should also be noted that the legislator does not require notification of employees about upcoming changes in the terms of employment contracts in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, against signature (as, for example, is done in part 2 of article 180 of the Labor Code of the Russian Federation). This, at first glance, simplifies the notification procedure, since it is not required to receive written confirmation of the fact that the notification was sent to the employee. However, as practice shows, the absence of an employee’s signature confirming the fact that he was given a notification of upcoming changes, in the event of disputes regarding the legality of dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation is interpreted in favor of the employee.

The best solution would be to draw up a notice in two copies, one of which is issued to the employee against signature, and the second remains with the employer (for example, in the personnel department). If the employer, in accordance with the notification form, has provided that the employee must express his decision directly in the notification (in a specially designated place), the copy issued to him is returned to the personnel department. The document management system in the organization may provide that the decision of the employee about the upcoming changes should be expressed in a separate document. In this case, the employer should develop an application form or prepare exemplary sample, which the employee will be guided by when drawing up his application.

In the notice, it is advisable to establish a period during which the employee needs to decide on his decision to work in the new conditions.

If the employee refuses to certify familiarization with the upcoming changes with his signature in the notification, the employer must draw up an appropriate act.

If the employee refuses to work in the new conditions, the employer is obliged in writing to offer him another vacant position available to the organization in the given locality, corresponding to the qualifications of the employee. If there are no such positions in the staff list, the employer must offer another lower position or lower-paid work that the employee can perform, taking into account his state of health.

In order to comply with this requirement, Art. 74 of the Labor Code of the Russian Federation, it is necessary to offer the employee a list of vacant positions, containing, in addition to the names of the positions, a description of the labor function for each of them and the terms of remuneration. At the same time, the employer must offer vacancies within the entire two-month notice period.

It should also be borne in mind that when offering such positions, the employer is not entitled to conduct interviews to verify the employee's business qualities, since the offered vacancies must initially correspond to the employee's qualifications. Otherwise, it would be contrary to Art. 74 of the Labor Code of the Russian Federation (see the Ruling of the Moscow City Court dated July 1, 2010 in case No. 33-19700).

The employer is obliged to offer work in another locality to the employee only if this is provided for by the collective agreement, agreements, labor contract. It seems that this is possible in organizations that have separately located structural subdivisions (branches, representative offices and other separate structural subdivisions) outside the administrative-territorial boundaries of the corresponding settlement.

4. Results of the procedure for introducing changes in working conditions

Upon receipt from the employee of the consent to continue working in the new conditions, a written agreement (additional agreement to the employment contract) is concluded between the employee and the employer, which establishes new (modified) conditions of the employment contract. Based on it personnel service prepares an order (instruction) to change the terms of the employment contract determined by the parties.

If the employee refuses to continue working under the new conditions, but agrees to the transfer, in accordance with the agreement reached, the parties sign an additional agreement to the employment contract on the transfer of the employee to a position from the list of vacancies offered by the employer and the employer draws up the transfer of the employee to another job by order (instruction) in in accordance with Art. 72.1 of the Labor Code of the Russian Federation.

If the employee refuses to continue working in the new conditions, as well as from another job offered to him or there are no vacancies in the organization, the employment contract after the expiration of the notice period is terminated on the basis of paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

When employees are dismissed on this basis, they are paid in addition to the final calculation and compensation for unused vacation severance pay in the amount of a two-week average salary (part 3 of article 178 of the Labor Code of the Russian Federation).

5. Consequences of incorrect application of the provisions of Art. 74 of the Labor Code of the Russian Federation or registration of ongoing organizational or technological changes in working conditions

The employer must be prepared to defend his position in court. In the event of a dispute about the legality of terminating an employment contract with an employee, the employer will be required to prove the impossibility of maintaining its previous conditions. According to Art. 56 Code of Civil Procedure of the Russian Federation and paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" the obligation to prove the existence of a legal basis for the dismissal of an employee rests with the employer.

Thus, the consequences of the incorrect application of the norms of Art. 74 of the Labor Code of the Russian Federation, including the subsequent dismissal of an employee, may be as follows:

If the existence of organizational or technological changes in working conditions, which led to the impossibility of maintaining the previous terms of the employment contract, is proven, but the employee is dismissed under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation without a two-month notice about a change in the terms of the employment contract, the court, when considering a dispute, may change the date of dismissal to the day the two-month notice period expires. If the employee was warned about changes in the terms of the employment contract, but dismissed due to the introduction of new working conditions before the expiration of the two-month period, the court may change the date of dismissal, taking into account the time remaining before the expiration of the two-month notice period. During the period for which the term of the employment contract has been extended due to a change in the date of its termination, the employer is obliged to reimburse the employee for the average salary;

If the employer fails to prove that there are good reasons why the previous terms of the employment contract could not be maintained, the employee, upon his application, is subject to reinstatement at work by the court and the employer is charged with the average earnings for the entire time of forced absenteeism. In addition, in favor of the employee, the employer may be charged compensation for moral damage (the amount is established by the court) and reimbursement of expenses for the services of his representative (Article 100 of the Code of Civil Procedure of the Russian Federation);

If, at the initiative of the employer, the terms of the employment contract were unilaterally changed in the direction of worsening the position of the employee compared to the previous conditions and the employee went to court to declare such changes illegal, and in court the employer could not prove a causal relationship between organizational or technological changes in conditions labor and a change in the terms of the employment contract, the employer will have to maintain the previous terms of the employment contract, and if during the period of validity of the changed conditions the employee was paid less than the previous salary, pay the employee the lost earnings, taking into account the fine under Art. 236 of the Labor Code of the Russian Federation based on 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

In addition to the above, violation of the norms of labor legislation entails bringing the organization and its head to administrative responsibility and applying to them the appropriate sanctions provided for in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, namely the imposition of fines:

• - for officials - in the amount of one to five thousand rubles;
• - for an employer-entrepreneur - also from one to five thousand rubles or suspension of his activities for a period of up to ninety days;
• - for legal entities - from thirty thousand to fifty thousand rubles or an administrative suspension of activities for a period of up to ninety days.

situation from practice. The employee filed a lawsuit to challenge the reduction in salary. Is his demand legitimate, given that this change did not affect other employees?

If the employer does not prove the validity of changing the salary of one specific employee, then such a change in the terms of the employment contract cannot be recognized as legal.

According to Art. 57 of the Labor Code of the Russian Federation, the terms of remuneration (including the amount tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments). In accordance with Part 1 of Art. 74 of the Labor Code of the Russian Federation, if 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 saved, they can be changed at the initiative of the employer. Therefore, if the change in the employee's salary was caused by a change in organizational working conditions, then the employer must prove that the change in working conditions affected the entire organization as a whole, and not just one specific employee.

6. The introduction of a part-time regime in case of a threat of mass
layoffs due to changes in organizational or technological working conditions

Article 74 of the Labor Code of the Russian Federation gives the employer the right to unilaterally introduce a part-time regime if a change in organizational or technological working conditions may lead to mass dismissal of employees. The introduction of such a regime is carried out taking into account the opinion of the trade union (if there is a trade union organization at the enterprise). The criteria for mass dismissal are established by industry agreements (part 1 of article 82 of the Labor Code of the Russian Federation).

For example, according to the Industry Agreement on Organizations railway transport for 2011 - 2013, dismissal is considered massive when the number or staff is reduced by 5 or more percent of employees of an organization, branch, other structural unit within 90 calendar days.

The industry agreement on organizations of the rocket and space industry of the Russian Federation for 2011-2013 states that the criteria for mass layoffs are the number or percentage of employees laid off due to the liquidation of enterprises, institutions, organizations or a reduction in the number or staff of employees for a certain calendar period.

Such criteria include a reduction in the number or staff of employees in the amount of:

50 or more people within 30 calendar days, but not more than 10% of the number of employees in the organization;

200 or more people within 60 calendar days, but not more than 10% of the number of employees in the organization;

500 or more people within 90 calendar days, but not more than 10% of the number of employees in the organization.

The Moscow tripartite agreement for 2012 between the Government of Moscow, Moscow associations of trade unions and Moscow associations of employers dated November 30, 2011 established that the criteria for mass layoffs are the indicators of the number of dismissed workers for a certain period of time:

Dismissal within 30 calendar days of more than 25 percent of employees of the total number of employees in the organization;

Dismissal of employees in connection with the liquidation of an organization of any organizational and legal form;

Reducing the number or staff of the organization's employees in the amount of:

50 or more people within 30 calendar days;

200 or more people within 60 calendar days;

500 or more people within 90 calendar days.

If there is no agreement in a particular industry or does not apply to this employer, then the criteria for mass layoffs should be determined on the basis of clause 1 of the Regulations on the organization of work to promote employment in conditions of mass layoffs (approved by Resolution of the Council of Ministers of the Russian Federation of 05.02.1993 N 99 ). According to this document, a dismissal is considered massive with a reduction:

50 people or more within 30 calendar days;

200 people or more within 60 calendar days;

500 people or more within 90 calendar days;

One percent of the total number of employees within 30 calendar days in regions with a total number of less than five thousand people.

The law establishes a deadline for which part-time work can be introduced - six months. Within its limits, a specific duration of working time (week, day, shift) is established. After the expiration of the period for which the part-time working regime was introduced, employees must be transferred to the previous regime.

The abolition of the part-time regime before the expiration of the period for which it was established is carried out taking into account the opinion of the elected body of the primary trade union organization.

From 01/01/2009, the employer is obliged to inform the employment service about the introduction of part-time work, indicating the reasons for making such a decision, the number of employees in this mode and the duration of part-time work on average for the organization (clause 2, article 25 of the Law of the Russian Federation of 04/19/1991 N 1032-1 "On employment in the Russian Federation", letter of Rostrud dated 17.05.2011 N 1329-6-1).

According to Art. 19.7 of the Code of Administrative Offenses of the Russian Federation, failure to submit or untimely submission to the employment service of information on the introduction of part-time work, as well as their submission in a distorted form, entails the imposition of an administrative fine:

For officials - from 300 to 500 rubles;

For legal entities - from 3000 to 5000 rubles.

In addition, information on underemployment of workers should be submitted monthly to the statistical authorities. Form of federal statistical observation No. P-4 (NZ) "Information on part-time employment and movement of workers" with Instructions for filling it out was approved by Order of Rosstat dated August 19, 2011 No. 367. Information on the form must be submitted no later than the 3rd day after the reporting month .

If a legal entity has separate subdivisions, the form is filled out both for each separate subdivision and for a legal entity without these subdivisions. In the event that a legal entity (its separate subdivision) does not carry out activities at its location, the form is provided at the place of actual implementation of its activities (clause 1 of the Instructions for filling out the form of federal statistical observation.

Transfer of workers to part-time work time must be motivated and justified. The fall in production volumes, the deterioration of the financial situation and other economic reasons do not in themselves give the employer the right to unilaterally change the work and rest regimes of employees (see the Ruling of the Moscow Regional Court of September 28, 2010 in case No. 33-18600). Such changes must be preceded by appropriate procedures, the obligation to conduct which is provided for by Art. 74 of the Labor Code of the Russian Federation.

In order to recognize the legality of the introduction of part-time work, in the event of a dispute, the employer will be required to prove the following:

1) the relationship between changes in organizational or technological working conditions and the possibility of mass layoffs of workers;

2) the purpose of introducing a part-time working week regime is actually to preserve jobs.

The employer has the right to introduce the part-time working regime for up to six months repeatedly, i.e. whenever the organizational or technological working conditions change, which may lead to mass layoffs of workers. In this case, the employer will have to repeat the procedures provided for in Art. 74 of the Labor Code of the Russian Federation. In particular, employees must be notified in writing of changes in the terms of an employment contract no later than two months in advance. It is also necessary to take into account the opinion of the elected body of the primary trade union organization (if any) and send an appropriate message to the employment service authorities.

The employee has the right to refuse to continue working on a part-time (shift) basis. In this case, the employment contract with him is terminated under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation after the expiration of the warning period for the introduction of part-time work, i.e., according to the rules for reducing the staff or number of employees of the organization, and the employee in accordance with Art. 74 of the Labor Code of the Russian Federation, all guarantees and compensations provided for persons dismissed due to a reduction in staff or the number of employees must be provided. Upon dismissal on this basis, the employer is obliged to notify the employee about this two months in advance (part 2 of article 180 of the Labor Code of the Russian Federation).

The question remains whether the employer should notify the employee two months before the reduction in staff or number already after the expiration of the two-month notice period for the introduction of part-time work (i.e., in total, four months must elapse before the termination of the employment contract, and the provision on part-time work time for this employee cannot be extended due to his refusal) or he can take the simplified path of downsizing or staffing, i.e. without additional warning of the employee about the reduction. On this issue, opinions differ even among the official representatives of Rostrud. At the same time, it must be borne in mind that the part-time regime for this employee cannot be extended due to his refusal.

Obviously, it is possible to recommend employers, warning employees two months in advance about the introduction of part-time work, at the same time fulfill the obligation provided for in Art. 180 of the Labor Code of the Russian Federation, i.e., in a notice of a change in the terms of an employment contract, warn the employee about the possibility of his dismissal in two months under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation in case of refusal to continue work in the new conditions.