What changes in working conditions require the consent of the employee. Changes in working conditions at the initiative of the employer and the employee. Free online legal advice on all legal issues

Legal newspaper for business Consulting company "STRATEGY"

Some companies, having chosen new methods of motivation, rush to implement them hastily. Unfortunately, sometimes the legal part of the implementation is limited only to the issuance of an order that from now on the working regime will be the same, and the wage system will be the same. This is not enough.
We've also had to deal with a more thorough approach to innovation.
So, in one company, the director gathered employees, held a meeting with them. At the meeting, new conditions for further work were determined - they changed the production rates, the working hours and the system of material incentives, in an organized way they rewrote the internal regulations, the regulation on wages and bonuses, as well as several job descriptions. And they began to work together further. One employee hastened to darken the success and achievements of the company with his fly in the ointment. His output turned out to be less than others, and as a result he was left without the long-awaited bonus. A dispute with the director did not give him the desired result, and in the morning of the next day he went to the labor inspectorate.
The company I'm talking about committed a number of violations by introducing new working conditions.
Remember article 57 of the Labor Code? It lists the essential terms of the employment contract. And among them we find the conditions of work and rest, and the conditions of remuneration, and the rights and obligations of workers. That is, these conditions can arise and change in only two ways:
1. By agreement of the parties, namely the employer and the employee. Then, with all employees who are affected by the innovation, it will be necessary to conclude additional agreements to the employment contract. And in these additional agreements to stipulate new conditions. If the employer simply introduces his novels by order, it turns out that he unilaterally changes the terms of the employment contract. And this is illegal. For this, the labor inspectorate or the prosecutor's office may impose a fine. In addition, there is a risk of more losses occurring.
For example, the procedure for awarding bonuses has changed, some of the employees began to receive less wages than before, got angry, got angry, appealed to the court or the inspectorate. And then the company may be obliged to pay such an employee according to the "old" order everything that was not paid to him for the entire period of the new conditions. From the same count vacation pay, taxes, sick leave, deductions. And if the period for recalculation is already very long? And if, during the inspection, the labor inspectorate discovers that there are many more underpaid workers? How much money will it take? And the time?
2. At the initiative of the employer in the manner specified in Art. 73 of the Labor Code of the Russian Federation. What is this order?
If changes in the employment contract (salary, work schedule, production rates, etc., with the exception of the job function) are caused by organizational or technological changes at the enterprise, you do not need to ask the employee's consent. But you need to follow the procedure for changing the essential conditions of the employment contract. For clarity, let's break it down into steps.
Step 1.
Document the fact of changes in organizational or technological working conditions.
Please note that in Art. 73 of the Labor Code of the Russian Federation, the legislator establishes the possibility of changing the essential conditions of the employment contract for strictly defined reasons
- changes in organizational working conditions,
- changes in the technological working conditions.
These changes must be documented, the employer is obliged to justify his actions and provide evidence that the essential conditions of the employment contract have changed due to precisely these reasons.
Otherwise, unilateral change of essential working conditions by the employer will be illegal.
The head of a large trading company, on the recommendation of the chief accountant, fired two accountants, stating the reason for "changing organizational working conditions." All work was distributed among the remaining employees.
During the inspection of the labor inspectorate, the directors of the company received a fine and an order to reinstate the dismissed, because the work intensity of those who remained increased. That is, there were no organizational grounds for dismissal.
And here is another example from the practice of your business neighbors. More successful.
The head of the firm fired all the guards and entered into an agreement with a security firm. The labor inspector admitted that the manager acted legally, as there were organizational changes in working conditions.
As arguments for changing organizational conditions, one can also refer to new provisions in the collective agreement, changes in the staffing table as a result of automation of accounting based on the "1C" or "Best" programs, changes in the operating mode of a trading facility and internal labor regulations.
The commissioning of new equipment, a change in production technology, documentary evidence of changes in GOST standards, etc., can become evidence of a change in technological conditions.
In the order to change the organizational and technological working conditions, it is necessary to mention what specific conditions and changes are meant with reference to supporting documents.
Step 2.
The employer-organization must notify the employee in writing about the upcoming changes two months in advance.
An employer who is an individual must notify about the change in essential conditions at least 14 calendar days in advance.
Usually, for such a case, a notification form is developed, it is indicated in it what organizational and technological changes have befallen the company, what changes in essential working conditions will arise in this regard and from what time.
You need to notify employees against receipt, or you can send letters with acknowledgment of receipt.
The notification might look something like this:

JSC "Espagnolette Plant" Ivanov Petr Sidorovich
To the installer of the 5th category

Notification
14.01.2005, No. 10
Volgograd
on changes in essential conditions
employment contract

Dear Petr Sidorovich!
I inform you that in connection with the implementation of measures to organize the effective operation of equipment and workplaces, optimization of the production process, there will be changes in the essential conditions of the employment contract dated 05/10/2002 No. 25. From March 20, 2005, a shift working regime has been introduced for you with the obligatory observance of the working time norm.
In accordance with Part 3 of Art. 73 of the Labor Code of the Russian Federation, in case of refusal to continue working in a shift mode of operation, you are offered a job as an electrician for maintenance of electrical installations of the 5th category.
In accordance with part 4 of article 73 of the Labor Code of the Russian Federation, in case of refusal from the proposed job, after a two-month warning period, the employment contract with you will be terminated under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

General Director of Reformers Yu.P.

When notifying an employee about a new work schedule (sliding or shift), do not forget that, according to the law, you must inform the employee about it at least one month in advance. Therefore, it is advisable to familiarize the employee with the future schedule simultaneously with the notification of changes in the essential conditions of the employment contract.
Step 3.
If the employee agrees to continue the employment relationship according to the new scenario, then the next task is to document the consent. Usually on the notification, employees write that they agree. In some companies, personnel officers take a separate written consent from the employee.
After this, the changes should be reflected in employment contracts or additional agreements to them.
You can use the following form of an additional agreement to an employment contract:

ADDITIONAL AGREEMENT
to the employment contract No. ______ from __________________________
__________ "___" ________ 200_
_____________________________________________________________________________,
(name of employer)
represented by __________________________________________________________________________,
(position, f., and., about.),
acting on the basis ______________________________________________________,
(charter, regulations, power of attorney)
one side,
and _____________________________________________________________________________,
(f., i., o. employee)
passport series ______________ No. ___________________ issued by "__" _____________. _____________________________________________________________________________
on the other hand, have accepted this supplementary agreement as follows.
1. To exclude from the employment contract No. _____ dated "___" _______________ 200 ___, concluded between ________________________ and ________________________, (hereinafter referred to as the Employment Contract) the following clauses ________________________________________.
2. Supplement the Labor Contract with the following clauses:
NS.___________________________________________________________________________
(item number and text)
3. State clauses _____________ of the Labor Contract in the following edition:
3.1. NS. _____ - __________________________________________________________________________
(item number and text)
3.2. NS. _____ - ___________________________________________________________________________
(item number and text)
3.3. NS. _____ - ___________________________________________________________________________
(item number and text)
4. This agreement comes into force on "__" ___________.
5. Details and signatures of the parties.

Adjust job descriptions, for example subordination clauses may change.

Step 4.
In the relevant local acts of the employer, fix the introduction of changes to the essential conditions.
For example, if the work schedule changes, then we reflect this in the Internal Labor Regulations. If the terms of remuneration and bonuses for employees change, we will make appropriate adjustments to the Regulations on remuneration and bonuses.
Organizational changes within the firm may lead to the need to revise the Staff Regulations, Department Regulations, etc.
Technological changes may entail addition of the Provisions on trade secrets, Safety instructions.
It is necessary to familiarize employees with the changes in local acts against signature. It's good if by the time a new edition of the employment contract or additional agreement is concluded, all local acts are ready. The employee, simultaneously with the signing of the contract, will sign for familiarization with the acts of the employer.

It is quite possible that some employees will not be inspired by the reform ideas of the leadership. Well, we don't like rebuildings for quite some time now.
If the employee does not agree to the proposed significant change in working conditions, then it is necessary to offer him another job in writing according to his qualifications. If there is no such job, then a vacant lower position or a lower-paid job, taking into account his qualifications and state of health. Well, if the employee does not agree with this, then he can be fired under clause 7 of Art. 77 "refusal of an employee to continue working in connection with a change in the essential conditions of the employment contract." It is very important to keep all written offers to the employee of vacancies and the employee's answers to them.
Judicial practice knows a huge number of examples when, due to a violation of the law on the offer of vacancies, dismissed workers were reinstated and / or collected from the employer the average earnings for forced absenteeism.
Particular attention should be paid to the fact that if the employee refuses to continue working on a part-time basis, the employment contract is terminated under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation on (reduction of the number or staff of the organization's employees) with the provision of all appropriate guarantees and compensations to the employee.
As you can see, the clause and number of the article for dismissal depends on the terms of the employment contract that have changed.
I would also like to note the following legal nuance.
According to Art. 73 of the Labor Code of the Russian Federation, amendments to the essential conditions of the employment contract cannot be introduced, which worsen the position of the employee in comparison with the terms of the collective agreement, agreement. Nevertheless, in our work, we continue to face the fact that organizations are changing the methods of material and social incentives for the employee, working modes, not joining them with the terms of collective agreements.
For example, last year one well-known Volgograd company (ZAO) acquired another - a bankrupt limited liability company with unlimited problems. The former founders left the LLC, and the new ones entered it. The employees of the LLC were not fired, but the essential working conditions were changed, so to speak, brought in line with the norms in force in the absorbing company. Nobody even bothered to check whether there was a collective agreement in the LLC or not. We have carried out reforms in the field of working hours and conditions of remuneration. A year has passed. We were summoned to conduct a personnel audit, and we found the collective agreement of the LLC. And in it all the conditions of remuneration and bonuses, the conditions for the provision of vouchers and the use of other social motivators are described in the most detailed way, the working hours are regulated by positions. And the new conditions that were in force over the past year worsened the situation of the employee in comparison with those proclaimed in the collective agreement. Can you imagine how much in this situation you will have to recalculate and possibly overpay salaries for the year?
Another case. The collective agreement established a standardized working day, a 40-hour five-day work week with two days off. Having lost sight of this point, the company introduced a 6-day work week. Yes, there was a production need - that's understandable. But what about the collective agreement? It should have been changed first, and then turned a 5-day work week into a 6-day one. Not otherwise. As a result, during the inspection, the inspector reasonably suggested that this company pay all employees for an impressively long period of work on Saturdays as work on weekends! This is the kind of trap you would not wish for a competitor.
So it is an important and responsible matter to carefully read the collective agreement of the company before introducing any new methods of motivation.
And for those who have not yet signed a collective agreement, we advise the following. When you develop the text of the collective agreement, remember that someday you will change the methods of staff motivation, therefore, excessive detail in the document is useless, especially on issues related to motivation. Leave them for the Internal Labor Regulations, for the Regulations on Remuneration and Bonuses. They are easier to change than a collective agreement. In addition, the procedure for changing the collective agreement is not properly regulated by the Labor Code.
And if you still have a collective agreement and new methods of motivation contradict it, then you will have to amend the collective agreement before introducing them.

Changing the terms of an employment contract is an opportunity established by law to change an employment contract during the period of its validity. We will tell you how to correctly formalize the change in the terms of the employment contract determined by the parties.

Is it possible to change the terms of the employment contract

Changes to the essential terms of the employment contract (Labor Code of the Russian Federation, Art. 72) are carried out upon the conclusion of an additional agreement between the employer and the employee, which becomes an integral part of the work agreement. Both the employer and the employee have the right to initiate them.

Changes to the terms of the labor contract determined by the parties are allowed when they do not infringe on the rights and do not reduce the level of guarantees to employees, in comparison with those established by labor legislation.

The essential conditions of the employment contract are changed:

• at the will of the employee;
• at the will of the employer;
• for reasons that do not depend on the wishes of the parties.

Chapter 12 of the Labor Code of the Russian Federation defines a list of circumstances under which an existing employment contract can be edited:

• transfer to another department with the consent of the employee;
• change of the contract due to the changed working conditions;
• new owner of the enterprise;
• removal of a person from the performance of duties according to the position.

Changing the terms of an employment contract at the initiative of an employee

The way in which you need to contact the employer is to send a statement to him, which sets out the reasons for making changes to the employment agreement, their nature, and the possible timing of their introduction. The document is drawn up in writing and registered.

After reviewing the application, the manager can:

• agree to amendments to the contract;
• refuse an employee.

The employer expresses the decision in writing (by resolution on the application or by letter of reply).

The manager has the right to support the employee's proposal for changes, but is not obliged to do so. In case of refusal, the person continues to work on the same conditions.

When changes cannot be denied

In some cases, the employer does not have the right to refuse an employee. For example, it is the employer's responsibility to introduce part-time work if there is an application from:

• women during pregnancy;
• one of the parents of a child under 14;
• a person who is caring for a sick family member on a medical basis.

Additional agreement

If the employer agrees with the variant of changes proposed by the employee, the parties must draw up and sign an additional agreement to the employment contract in duplicate. This paper records the existing agreements. It should reflect the data of the parties, the number and place of registration, clearly state the provisions that have been changed, indicate the date from which the agreement will begin.

Changing the terms of the employment contract at the initiative of the employer

This usually happens in relation to one or more clauses of the agreement contained in Art. 57 of the Labor Code of the Russian Federation concerning:

• places of work;
• labor functionality;
• salaries;
• work and rest regime;
• the nature of work (traveling, etc.);
• reimbursement of expenses related to the use of your car for work purposes;
• compensation to managers upon termination of an employment contract with them.

Notification

If the employer needs to change the terms of the contract, he sends a proposal to the employee at least two months in advance with an explanation of the reasons for the need to adjust the previously reached agreements.

The employer must issue an order for changes introduced at the end of the notification period, indicating the reasons. The document must indicate the deadline for the employee to make a final decision. Employees should be familiarized with the administrative document in writing.

It is unacceptable to put pressure on an employee, therefore, in case of his refusal, the requirements remain the same.

The employer has the right (article 72.2 of the Labor Code of the Russian Federation) to change the conditions unilaterally when:

• any natural disasters;
• industrial accidents, accidents;
• fires, floods, ice, etc.

It is permissible to change the provisions of the agreement in the order of a unilateral decision made by the employer, when the organizational or technical conditions of work are changed (Article 74 of the Labor Code of the Russian Federation).

Consent or waiver of new requirements

Various algorithms are provided for actions in the presence of consent or refusal to innovate.

The employee agrees to the change

Having received consent to continue working in other conditions, the employer and the employee conclude a written supplementary agreement to the contract. The document defines the amended provisions. Based on it, the personnel department develops a draft order that changes the terms of the contract.

The employee refused to amend the contract, but agrees with the translation

In case of refusal to work in the new conditions and there is consent to transfer, the parties draw up an additional agreement providing for the transfer to another position (from the list proposed by the employer).

The employer draws up an administrative document on the transfer in accordance with Art. 72.1 of the Labor Code of the Russian Federation and enters information into the personal card T-2 (Resolution of the State Statistics Committee No. 1 of 01/05/2004).

The employee refused to both change the terms of the contract and transfer

In such a situation or the absence of vacancies in the institution at the end of the notice period, the labor agreement is terminated on the grounds provided for in clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

To carry out the procedure correctly, you must:

• receive an employee's refusal (in writing) to work in new conditions;
• register it;
• offer another job;
• get rejected from her;
• issue and register a notice of termination of the employment agreement;
• issue and register a dismissal order;
• familiarize the employee with it in writing;
• issue and issue a work book;
• make payments due.

Job offer

If the employee refuses to work in other conditions, the employer must offer in writing the vacant positions available in the area in accordance with the qualifications. In the absence of such, the employer offers another lower position or work that is paid lower, while the employee is able to perform it, taking into account the state of health.

Observing the requirements of Art. 74 of the Labor Code of the Russian Federation, the employee should be offered a list of vacancies with the name, description of duties, working conditions (salary, regime). Jobs must be offered throughout the notice period. By offering such positions, the manager does not have the right to check the business and other qualities of the employee, since the work must initially correspond to the qualifications of the person. The employer is obliged to offer positions from another locality when it is stipulated by the collective agreement, labor agreement.

Job Center Notice

In connection with innovations in the institution associated with innovations in labor technologies, there may be a threat of mass layoffs. In this case, the employer has the right to enter a part-time work mode (Article 74 of the Labor Code of the Russian Federation). If there is a trade union, such actions must be coordinated with it. The criterion of mass dismissal is established by an industry agreement, and in its absence, the Decree of the Council of Ministers of the Russian Federation of 05.02.1993 No. 99 helps to determine it. The maximum period for which a regime can be established is 6 months.

The employer is obliged to send information to the employment service about the introduction of such a regime no later than 3 working days after the decision was made. If the reduction affects only one employee, the employer informs the employment authorities about it 2 months in advance. If the dismissal is massive, the service should be informed 3 months in advance.

By order of Rosstat dated 06.08.2018 No. 485, a new form P-4 was approved, the application of which will begin in the first quarter of 2019.

Additional agreement or order of dismissal

If the employee does not agree to work in the new conditions, the employer must issue an order in the unified form T-8. The basis for the document will be the refusal of the employee to continue working in the new conditions.

The ordering document is drawn up with reference to clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation indicating the full name, last day of work and signed by the head. The employee gets acquainted with the order to terminate the employment agreement under signature. If it is not possible to bring the content of the paper to the attention of the employee or he refuses to sign the order, an appropriate entry must be made in it.

Why it is necessary to follow the procedure

The employer should strictly adhere to the procedures established upon dismissal, since various fines are provided for violating them. So, if the procedure for changing working conditions is not followed, you can be brought to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of:

• 1000-5000 rubles - for an official and individual entrepreneur;
• 30,000-50,000 - for a legal entity.

Re-discovery of a violation will result in a fine in the amount of:

• 10,000-20,000 rubles - for an official (or disqualification from one to three years);
• 10,000-20,000 - for individual entrepreneurs;
• 50,000-70,000 - for a legal entity.

The lack of necessary information in the employment authorities or violation of the terms for their provision is also punishable by fines (Article 19.7 of the Administrative Code of the Russian Federation):

• for officials - 300-500 rubles;
• for legal entities - 3000-5000 rubles.

Violations in the provision of statistical data may become a reason for prosecution under Art. 13.19 of the Administrative Code of the Russian Federation in the amount of:

• 10,000-20,000 rubles - for officials (repeated case - 30,000-50,000 rubles);
• 20,000-70,000 - for legal entities (repeated case - 100,000-150,000 rubles).

Ask questions, and we will supplement the article with answers and explanations!

During an employment relationship, especially if employees have been working for the same employer for a sufficiently long time, various situations arise 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 made up of the conditions agreed by the parties. These are the wording of the law. In practice, the situation is different: in fact, the employer offers certain working conditions (such as working hours and rest time, the level of remuneration, etc.), and the employee, applying for a job with this particular employer, agrees with the conditions proposed to him. Likewise, an employer interested in this particular job candidate is ready to accept and formalize in the employment contract the conditions that such a “valuable” employee asks for.

The main thing is that the conditions of the employment contract established upon hiring are completely and completely satisfied with the candidate, otherwise he would not agree to work for this employer. If during the labor relationship any conditions of the employment contract, including the condition of the labor function, change by agreement of the parties, then in this case we can also say that the employee agrees to work in changing conditions, and in some situations he himself 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 are changed at the initiative of the employer due to some objective reasons? It is obvious that an employee accustomed to the previous conditions has every right to disagree with such changes.

Situations may arise that, it would seem, almost do not affect the interests of the employee, nevertheless, 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.

CHANGE IN WORKING CONDITIONS

In the course of labor activity, it is possible to change both the working conditions and the conditions of the labor contract specifically established when concluding an employment contract (information about the parties to the contract; mandatory and additional conditions).

Changes in working conditions should be considered as a change in 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; social partnership agreements concluded at the federal, interregional, regional, sectoral (inter-sectoral), territorial levels; a collective agreement in force with a specific employer; local regulations; agreements between employer and employee. If we turn directly to the norms of Art. 117, 147, 2161, 220 of the Labor Code of the Russian Federation, etc., then the working conditions are considered as:

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

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

In the summer, a new local normative act will be adopted in our organization, providing for the introduction, replacement and revision of labor standards (production rates, time, headcount 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 recorded 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 about 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 two months in advance, then the employee has a direct obligation to “comply with the established labor standards” (Article 21 of the Labor Code of the Russian Federation).

Otherwise, the employee's refusal to fulfill his job duties without good reason due to a change in the established procedure in labor standards (Article 162 of the Labor Code of the Russian Federation) refers to violations of labor discipline, which may entail unfavorable consequences for the employee in the form of disciplinary measures. The Plenum of the Supreme Court of the Russian Federation in paragraph 35 of the Resolution No. 2 of March 17, 2004 "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 through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.). NS.). Such violations, in particular, include the employee's refusal, without good reason, to fulfill his job duties in connection with a change in the established procedure in 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 specified in this contract, to comply 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 especially 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 clause 7, part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 74 of the Labor Code of the Russian Federation.

Under certain circumstances, a change in working conditions may lead to a change in the terms of an employment contract. As a general rule, the terms of an employment contract cannot be changed unilaterally - the same procedure must be followed here as when it was concluded, that is, mutual consent of the parties, with the exception of cases provided for by the Labor Code of the Russian Federation (in particular, in Art.722 and 74 of the Labor Code of the Russian Federation).

HR Dictionary

Note! According to Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract. In this case, an agreement on changing the terms of the employment contract determined by the parties must be drawn up in writing.

Changes to the terms of the employment contract, determined by the parties, are possible in the following forms:

1) transfer (permanent or temporary);

2) change of 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 the organizational or technological conditions of work, for example, changes in technology 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 the employee obliged to agree to a change in the terms of the employment contract if it is associated with a change in the organizational or technological working conditions?

Changes in the terms of the employment contract determined by the parties due to changes in the organizational or technological working conditions are, 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 job offered by the employer, and in this situation the employment contract must be terminated in accordance with clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. If the employee does not agree to continue working on a part-time basis (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 the 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 the new conditions, or the employment contract will be terminated in one way or another in accordance with the procedure established by labor legislation.

ORGANIZATIONAL CHANGES

The continuation of labor relations when the owner of the organization's property changes, the organization's jurisdiction changes, and 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 grounds for terminating employment contracts with employees.

Change of ownership of the organization's property

Note! Termination of an employment contract under clause 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 possibility of the new owner to terminate labor relations with the head of the organization, his deputy and the chief accountant on the basis provided for in paragraph 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation. These categories of employees cannot be dismissed on the above grounds when the jurisdiction (subordination) of the organization changes, unless the owner of the organization's property has changed.

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

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 obtained during state registration.

By the way

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

• in the texts of labor contracts concluded with employees;
• in the work books of employees.

Change of jurisdiction or reorganization of the organization

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

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

In law enforcement, the procedures for reorganization and liquidation of an organization should be distinguished, since they entail different consequences.

By the way

By the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated 03.05.2008 No. 78-B08-5, the dismissal of citizen S. under clause 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation, followed by her reinstatement 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 a Certificate of Record 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 indicated 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 transfer of rights and obligations by way of succession to other persons. Moreover, 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 of the organizational and legal form), all the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity.

In the given example, in fact, it was the reorganization that 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 a reason for termination of the employee's dismissal on the initiative of the employer.

So, in the event that the employer fulfills all the procedures established by labor legislation for changing the working conditions and conditions of the 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 work, we have given in table.

Cases and consequences of changes in working conditions

By the way

The legal relationship between the worker and the employer is formalized through an employment contract.

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This regulatory legal act prescribes all the points concerning their interaction. The labor contract may approve other conditions than those enshrined in the Labor Code of the Russian Federation.

After the signing of this document, mutual rights and obligations arise between the worker and the employer.

The agreement will not be recognized as concluded if the parties have not prescribed essential conditions. Please note that not all provisions will be recognized as such.

The list of essential conditions is approved in the Labor Code of the Russian Federation. They play a key role in regulating the relationship between worker and employer.

An employment contract is a document that is adopted at the very beginning of cooperation; over time, it may become necessary to make any changes.

Different transformations in this agreement are implemented differently. For example, essential conditions can only be revised in the manner approved by the legislator.

Important points

Labor relations can be characterized as stable and definite. However, they are also subject to change.

For example, those will follow in the event that the legislator has adopted new rules of law. Any transformation is possible at the will of the parties.

Exceptions include cases that are provided for in. The transformation of the relationship is recorded in a separate agreement.

Such a document is an integral part. Both the employee and the employer have the right to initiate changes.

If the transformations do not comply with the requirements of the law, then they are invalidated. This rule follows from.

The conditions that are provided for in the employment contract can be classified into two large groups:

• those that are negotiated by the parties in an agreement by mutual decision;
• those that are transferred from legislation and other acts, including local ones.

Accordingly, depending on which group the provisions belong to, the procedure for introducing transformations will also be determined.

For example, conditions arising from labor law are subject to transformation by virtue of amendments to regulations.

What it is

The concept of "change of the employment contract" is absent in the Labor Code of the Russian Federation. This issue is devoted to this codified act.

Despite the fact that the concept is absent, it can be concluded that it is inseparable from the content. Any change provokes a transformation in the rights and obligations of the employer and the employee.

By the way, the RF Labor Code itself does not contain a detailed description of the procedure. However, an indication is made that the transformations are formalized by drawing up an agreement between the parties.

Moreover, it must be signed by both the employee and the employer. The agreement is fixed in writing. But the rule of mutual expression of will has its exceptions.

• place and date of commencement of employment;
• Job title;
• the rights and obligations of the worker and the employer;
• characteristics of working conditions (for example, hazardous and harmful conditions are indicated);
• work and rest regime;
• the salary;
• social insurance of the worker.

Let's consider some of them in more detail. The date of commencement of employment can be determined in one of the following ways:

• the date specified in the contract itself;
• the date specified in the order;
• the date of actual admission to work.

Place of work - the name of the structural unit in which the worker will perform his functions. Specify a specific address.

The name of the position is prescribed for the reason that it is on this condition that the labor function of the employee will be determined. It is indicated according to the ETKS of work and professions of workers.

Social security provisions are included when the employer provides additional measures. So, he can pay additional contributions to the FIU.

Why the need arises

Change can be triggered by a variety of reasons. For example, terms that are actually copied from legislation are subject to change when regulations are amended.

Those provisions that the parties independently settled in the agreement are subject to change at the request of the parties.

So, the procedure for remuneration of labor, the working regime can be transformed, and new guarantees for the employee are included.

The name of the employee's position and the scope of his job duties may be subject to change.

Legal regulation

The main normative legal act that regulates the procedure for changing the employment contract is the Labor Code of the Russian Federation. It is in its provisions that the procedure for the inclusion of transformations is fixed.

We are talking about chapter 12. In the same codified act, those provisions of the employment contract that can be called essential are recorded.

Changing the terms of the employment contract determined by the parties on the initiative of the employer

A change in essential conditions can be implemented either at the will of the parties, or by the decision of the employer (in some cases).

These methods have significant differences in the procedure itself. For example, if both parties have the will to change the conditions, then it is drawn up.

This document details the position to be converted. These changes may relate to any points fixed in the employment contract.

But the transformations should not contradict the current norms of law. Otherwise, they will not be recognized as legal.

Essential conditions cannot be transformed unilaterally, except in a situation that we will consider later.

If the employer decides to make changes by issuing an order, then it is illegal. For example, the procedure for bonuses is spelled out in the employee's employment contract.

The employer accepted the verdict to change it and issued his order. Such a document can be appealed to the labor inspectorate.

Plus, the employer will have to compensate for the funds that his employee did not receive.
Another thing is when it comes to Article 74 of the Labor Code of the Russian Federation.

This regulation provides for the situations of making changes to labor contracts, when this is explained by a change in organizational and technological conditions.

Even in this situation, the procedure approved by the legislator must be followed.

How to proceed

So, changing the employment contract at the initiative of the employer provides for the following actions:

• documenting the fact of transformation of working conditions;
• notification of employees within the time limits approved by the Labor Code of the Russian Federation;
• registration of additional labor agreements (with the consent of employees);
• amendments to local acts.

First of all, the employer is obliged to documentarily substantiate the possibility of unilateral transformations.

The legislator has provided only two grounds for revising the essential conditions:

• changes in organizational working conditions;
• changing technological working conditions.

If the employer is unable to substantiate his actions and prove the legality of the unilateral change, then his actions may be recognized as illegal.

An exhaustive list of such conditions has not been approved. In fact, each specific case is assessed by examiners or courts when disputes arise.

At the next stage, the employee must agree to work under the new conditions or refuse to continue working.

Video: conclusion, amendment and termination of an employment contract with an employee

The order of registration differs at different enterprises. Somewhere workers express their consent in writing at the notice.

In some companies, it is provided in a separate form by issuing a special document.

If the employee has expressed his consent, then the employer draws up an additional agreement, which the parties sign.

At the last stage, it is necessary to fix the changes by introducing them into the local documents of the company (Internal Labor Regulations, Regulations on Bonuses, etc.).

Forming a notification

Notification is an important step on the way to changing the terms of the contract by the decision of the employer. If it is not presented, then the employee has the right to apply to the controlling authorities.

The notification must indicate what changes will take place in the company, what transformations of essential conditions will occur and from what moment.

We have already said that notices can be delivered to the employee in person or sent by mail with notification.

If the employee has objections

If the employee does not want to work, taking into account the changes, then he can terminate the employment contract.

At the same time, according to Article 74 of the Labor Code of the Russian Federation, the employer offers him another position (if any), which the worker can implement due to his health.

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

Attention

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

Labor code on the procedure for changing an employment contract

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

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

IMPORTANT

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

When can an employment contract be changed?

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

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

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

Change order

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

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

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

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

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

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

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

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

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

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

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

Change agreement

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

For your information

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

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

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

Employee notification

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

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

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

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

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

Additional Information

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

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

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

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

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

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

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

This procedure is officially established and cannot be violated.

Refusal to amend

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

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

Nuances

When employers want to unilaterally amend them, they often get confused. This leads to the recognition of the adopted innovations in the employment contract as illegal. There are many editing situations in order to optimize the work:

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

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

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

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

In addition, the employer often makes the following mistakes:

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

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

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

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