The Labor Code changes the terms of an employment contract. Changes in essential working conditions. Essential working conditions
Art. 74 Labor Code of the Russian Federationconsiders one of the cases when the employer has the right to unilaterally change the conditions of the employment contract established initially. In the article we will tell you what this case is and answer the main questions about the procedure for changing an employment contract in accordance with Art. 74 TK.
Article 74 of the Labor Code
In the course of the activity of any organization, certain changes can occur and constantly occur. Some of them do not affect the relationship with the staff. Others, for absolutely objective reasons, lead to the impossibility to keep in force all labor agreements that the employee and the employer came to when concluding an employment contract (TD). Moreover, the current situation may suit the employee, but the employer may not like it.
Does he have the ability to somehow influence the situation? Does he have the right to deviate from the original agreements for the benefit of the business?
Yes, but subject to certain conditions.
Labor Code in Art. 74 allows for the possibility of a unilateral change by the employer of the conditions of TD with employees due to changes in organizational or technological working conditions, and also establishes a strict procedure for introducing such changes. It must be strictly observed. Otherwise, the change in the original employment agreements may be challenged by the employee.
In general, the scheme of actions required by the Code is clear and understandable, and only partly needs additional comments. We will give them later in the article.
What conditions can be changed under Article 74 of the Labor Code of the Russian Federation?
In the event of an organizational or technologically justified need, the employer has the right to change almost any condition of the TD (and even several conditions at once). The ban is set only on changing the labor function. In other words, the position, profession or type of assigned work should remain in its original form. Everything else is changeable. For example, the place of performance of labor duties, the mode of work or work schedule, and even the level of remuneration for work may change. Other adjustments are possible.
Read more about the conditions included in labor agreements in the article. "The procedure for concluding an employment contract (nuances)" .
What, according to Art. 74 of the Labor Code, is meant by a change in organizational or technological working conditions?
In Art. 74 of the Labor Code of the Russian Federation among the reasons are changes in the technique and technology of production, as well as its structural reorganization. These include:
- innovations in the management structure;
- redistribution of workload between departments or positions;
- development of advanced technologies, equipment;
- other improvements.
In general, the list of reasons is open and determined by the specifics of the business and the characteristics of each specific situation. But in accordance with the comments to Article 74 of the Labor Code from the Plenum of the Armed Forces of the Russian Federation, in the event of a dispute, it is strictly on the employer to confirm the organizational and technological nature of the changes and prove that it was because of them that it was impossible to maintain all previous agreements with employees (paragraph 21 of the resolution dated March 17, 2004 No. 2).
IMPORTANT! Changes in TD cannot be based on such circumstances - a decrease in sales and a deterioration in the financial position of the company. The courts do not recognize them as organizational and technological changes.
What is the procedure for changing the terms of an employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation?
The general scheme looks like this:
- Preparation of changes in TD.
An appropriate organizational and administrative document (order, order) is issued indicating all the circumstances and reasons that initiated the changes.
- Informing about upcoming changes to the part of the team that they affect.
Inform in writing, the procedure is chosen by the employer. In practice, for this, either employees are introduced to the order against signature, or appropriate notifications are sent. They must indicate the nature of the changes and their reasons. The fact of sending the notice must be recorded. The notification period is at least two months before the introduction of changes.
All subsequent actions of the administration depend on the will of the employee.
The employee agrees to the changes, what documents to issue?
First of all, they sign an additional agreement (DS) with updated conditions.
The rules for issuing orders can be found in the article. “Orders for personnel - what are these orders (types)?” .
What to do if the employee does not agree to work in the new conditions?
To begin with, try to employ him in a similar position (vacancies should be offered in writing). If there are no equivalent ones, lower and lower paid ones are also offered. Perhaps even with a move (if the obligation to offer vacancies from other areas is enshrined in a collective or employment agreement).
If an agreement on another position / job is reached, a DS and a transfer order are issued. A note about him is entered into a personal card.
If there are no suitable vacancies or the employee refuses the proposed job, after the expiration of the 2 months allotted for informing, the TD is terminated under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation with the payment of severance pay - 2-week average salary. Of course, all other "dismissal" payments are made in the general manner.
see also "How to calculate compensation upon dismissal in 2019?" :
Is it possible to fire a dissenting person during an illness?
If 2 "notification" months have expired, and the employee is on sick leave, this is not an obstacle to terminating the employment agreement on the basis of refusal to work in the new conditions. During illness, you cannot be fired at the initiative of the employer. A refusal to continue work due to a change in the conditions of the TD is a different case. The employee will not be able to challenge such a dismissal, the courts here are on the side of employers.
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Section III. LABOR CONTRACT
- Chapter 10. GENERAL PROVISIONS
- Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT
- Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT
- Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT
- Chapter 14. PROTECTION OF THE PERSONAL DATA OF THE EMPLOYEE
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Section IV. WORKING TIME
- Chapter 15. GENERAL PROVISIONS
- Chapter 16. WORKING HOURS
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Section V. REST
- Chapter 17. GENERAL PROVISIONS
- Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS
- Chapter 19
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Section VI. PAYMENT AND REGULATION OF LABOR
- Chapter 20. GENERAL PROVISIONS
- Chapter 21. WAGES
- Chapter 22
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Section VII. WARRANTY AND REFUND
- Chapter 23. GENERAL PROVISIONS
- Chapter 24
- Chapter 25
- Chapter 27
- Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
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Section VIII. WORK REGULATION. WORK DISCIPLINE
- Chapter 29. GENERAL PROVISIONS
- Chapter 30. DISCIPLINE OF LABOR
- SECTION IX. EMPLOYEE QUALIFICATION, PROFESSIONAL STANDARD, TRAINING AND ADDITIONAL PROFESSIONAL EDUCATION OF EMPLOYEES (as amended by Federal Law No. 122-FZ of May 2, 2015)
- Chapter 31. GENERAL PROVISIONS
- Chapter 32
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Section X. LABOR SAFETY
- Chapter 33. GENERAL PROVISIONS
- Chapter 34. LABOR PROTECTION REQUIREMENTS
- Chapter 35. ORGANIZATION OF LABOR PROTECTION
- Chapter 36
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Section XI. MATERIAL RESPONSIBILITY OF THE PARTIES TO THE EMPLOYMENT CONTRACT
- Chapter 37. GENERAL PROVISIONS
- Chapter 38
- Chapter 39
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Section XII. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES
- Chapter 40. GENERAL PROVISIONS
- Chapter 41
- Chapter 42
- Chapter 43
- Chapter 44
- Chapter 45
- Chapter 46
- Chapter 47
- Chapter 48
- Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES THAT ARE RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
- Chapter 49
- Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
- Chapter 50
- Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
- Chapter 51
- Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
- Chapter 52
- CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
- Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (PERSONNEL) (introduced by Federal Law of 05.05.2014 N 116-FZ)
- Chapter 54
- Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
- Chapter 55
- Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 56. GENERAL PROVISIONS
- Chapter 57
- Chapter 58
- Chapter 59
- Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
- Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
- Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW
Article 74 of the Labor Code of the Russian Federation. Changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
//=ShareLine::widget()?>(in ed. federal law dated 30.06.2006 N 90-FZ)
In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering 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, with the exception of changes in the work function of the employee.
The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with clause 7 of part one article 77 of this Code.
In the event that the reasons given in part one of this article may entail mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed article 372 of this Code for the adoption of local regulations, introduce a part-time (shift) and (or) part-time working week for up to six months.
If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with clause 2 of part one article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.
Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.
Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.
Change of technology and organization of work in the organization
Article 74 of the Labor Code of the Russian Federation includes rules for changing certain working conditions. contracts. Such changes entail measures to change the technical and organizational working conditions. Change labor. the contract in this case is always initiated by the employer. Article 74 of the Labor Code of the Russian Federation in part 1 contains an approximate, non-exhaustive list of reasons why an employer may decide to change contractual terms. The Resolution of the Plenum of the Supreme Court of March 17, 2004 somewhat supplements this list. So, a change in technology, for example, is:
- introduction of the latest technologies;
- changing jobs;
- introduction of new technical regulations, etc.
- new forms of labor organization (for example, work in teams);
- new mode of work and rest;
- revision of labor standards, etc.
- agree to the new terms;
- agree to transfer to another position;
- refuse both, terminate the contract.
“Personnel management”, 2009, N 8
ALL-POWERFUL ARTICLE? CHANGING THE TERMS OF THE EMPLOYMENT CONTRACT
ACCORDING TO Art. 74 Labor Code of the Russian Federation
The article of the Labor Code of the Russian Federation, which allows changing the terms of an employment contract for reasons related to changes in organizational or technological working conditions, was rarely used by employers before. However, at present, it has gained particular popularity, which is largely due to the economic crisis.
In connection with its onset, many employers need to reduce production costs, including wages, increase labor efficiency, etc. As a result of the current situation in the world market, the employer is forced to reduce the wages of employees, change the working hours of employees, the intensity of their work, etc. Of course, they are trying to put all these innovations into practice amicably by signing an additional agreement to employment contracts, explaining the situation to employees and receiving them agreement to amend contracts. However, not all employees manage to agree. And then the employer begins to look for opportunities to change the working conditions of employees unilaterally and, as a magic wand, refers to Art. 74 of the Labor Code of the Russian Federation. It gives the employer the right to change the terms of the employment contract determined by the parties unilaterally, having previously warned the employee about the upcoming changes two months in advance. It would seem that it is easier for the employer - he chose the clause of the employment contract that needed to be adjusted, waited two months and introduced new conditions. Moreover, the employer often sees a plus in the fact that if the employee refuses to work in the new conditions, he can be fired under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation with the payment of a two-week severance pay, and not for downsizing with the provision of more significant compensation to the employee. That is why a number of employers are trying to use this article in order to, having created a priori unbearable working conditions, dismiss the employee on this point, and not in connection with the actual reduction in staff. However, does this article give such unlimited possibilities, as it seems to us at first glance? Perhaps most employers misapply it without seeing the many legal risks? Let's try to figure it out.
Novels of the Labor Code of the Russian Federation
The possibility of changing the terms of an employment contract unilaterally was provided for in the Labor Code of the Russian Federation from the very beginning. However, when the legislator made changes in 2006, the article changed its number (from 73 to 74) and was presented in a different, new edition. At first glance, the old and new editions are almost identical. Without taking into account the formal changes, let us pay attention to the legislator's amendments that are significant for the practical application of this article. In our opinion, there are only six of them. For a more convenient analysis, we present the texts of the old and new editions of the corresponding article of the Labor Code of the Russian Federation in tabular form.
New edition of Art. 74 Labor Code of the Russian Federation Old edition Art. 73 Labor Code of the Russian Federation
Article 74
parties to the terms of the employment contract
reasons for changing
organizational or technological
working conditions Article 73. Change
essential working conditions
agreements
So, if you have already worked with this article and put it into practice, you should pay attention to 6 important changes that have occurred in it.
1. Firstly, earlier it was said that in this manner the employer can change the essential terms of the employment contract, now - the terms of the employment contract determined by the parties.
It would seem, what's the difference? The amendment is purely formal. In fact this is not true. And here's the thing. Previously, in the legal literature, there was a long dispute about what are the essential terms of an employment contract. Some researchers believed that these are the conditions that were directly named as essential in Art. 57 of the Labor Code of the Russian Federation, and a special procedure must be followed in relation to their change (either an additional agreement was signed with the employee, or it was necessary to carry out the procedure provided for then by Article 73 of the Labor Code of the Russian Federation). All other conditions prescribed in the employment contract with the employee were, in their opinion, insignificant, which means that they can be changed by the employer unilaterally at any time without observing any regulations. Other lawyers were convinced otherwise. They believed that any condition that fell into the employment contract is essential. Another thing is that, in their opinion, those conditions that were directly called essential in Art. 57 of the Labor Code of the Russian Federation, should have been included in the employment contract without fail. Other conditions were included in the employment contract at the request of the parties. However, if they were spelled out in it, they became significant. In the argumentation of the supporters of this position, reference was made to civil law, according to which, as is known, the essential terms of the contract are both mandatory or essential for such a contract in accordance with the law, and those in respect of which the parties, at the request of one of the parties, must reach agreements. According to such lawyers, changing any conditions prescribed in the contract required compliance with a special procedure, prescribed then in Art. 73 of the Labor Code of the Russian Federation. In practice, as a rule, employers were guided by the first of the stated positions, simply because it was more profitable for them. But the legislator, having amended the Labor Code of the Russian Federation in 2006, actually supported lawyers who proved that changing any condition of an employment contract requires either obtaining the consent of the employee or following a special procedure.
2. Secondly, changes are allowed only when certain parties to the employment contract cannot be saved by the employer.
Previously, a reference to such a condition for the application of Art. 73 of the Labor Code of the Russian Federation was absent. In the comments to Art. 73 of the Labor Code of the Russian Federation, researchers of labor legislation wrote that the application of the old Art. 73 of the Labor Code of the Russian Federation is possible only in the case when the old working conditions cannot objectively be preserved. But there was no direct instruction from the legislator on this matter, which was not only used by many employers, but also abused.
Example 1 So, in one company to one office worker, whom the management wanted to dismiss, decided in the manner prescribed by the old Art. 73 of the Labor Code of the Russian Federation, establish a working day from five in the morning in order to force him to leave.
Now the implementation of such a trick is almost impossible. The employer really must have objective reasons for the impossibility of maintaining the current working conditions. For example, he introduces new equipment, which forces him to transfer workers to a different work schedule; the owner breaks the lease agreement with the employer, and he is forced to move to another office in the same area, etc. That is, the employer must now not only find the reason for the change in the terms of the contract, but also prove that it was really impossible to maintain the previous working conditions. Why it was impossible to leave the previous work schedule to an office employee, it is unlikely that now it will be possible to explain the labor inspectorate.
3. Thirdly, earlier the legislator did not specify what reasons could be the grounds for changing the terms of the employment contract.
Now he is in Part 1 of Art. 74 of the Labor Code of the Russian Federation gives two possible examples. These are changes in engineering and production technology and structural reorganization of production. This list non-exhaustive, and the legislator indicates that there may be other reasons for changing the terms of the employment contract. But, apparently, they should be, firstly, similar to those named and, secondly, just as weighty.
4. When notifying an employee of changes in working conditions, you must inform him of the reasons for the introduction of such changes.
It is important to take this into account when carrying out the procedure itself, provided for by the new Art. 74 of the Labor Code of the Russian Federation. If earlier in the notice with which you introduced the employee, you had to indicate only what changes await him, now you should also write the reasons for them. Otherwise, your actions will be considered illegal.
5. The personnel officer should immediately offer the employee both vacancies that correspond to his qualifications, and vacancies that involve lower qualifications.
This is also important to remember when carrying out the procedure itself. Previously, in accordance with the old Art. 73 of the Labor Code of the Russian Federation, in the event of an employee’s refusal to continue working under new conditions, you should have offered him another job available in the organization that corresponds to his qualifications and state of health. And only if such work was absent - a vacant lower position or a lower-paid job that the employee can perform, taking into account his qualifications and state of health. With a literal interpretation of this article, it turned out that if you had positions in the organization that corresponded to the qualifications of the employee, and he refused them, he could be immediately dismissed under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation. You were not obliged to offer other vacancies of a lower qualification (even if they were available in the organization). Now the personnel officer should immediately offer the employee both vacancies corresponding to his qualifications and vacancies that involve lower qualifications. Otherwise, the dismissal procedure will be considered conducted with violations.
6. The employer is obliged to offer vacancies in other localities only if it is provided for by the collective agreement, agreements, labor contract.
Previously, there was no such clarification in the Labor Code of the Russian Federation, and it turned out that the employer had to offer all the relevant qualifications and health of the employee vacancies, including those available to him in another locality. Now he is obliged to do this only if it is expressly provided for in the collective agreement or agreement.
What and under what conditions can be changed in order,
provided for by Art. 74 of the Labor Code of the Russian Federation?
Questions about what terms of the employment contract and under what conditions can be changed have always been debatable. Moreover, when determining these conditions in practice, as a rule, mistakes are made.
Conditions under which an employer has the right to change employment
unilateral contract
First, we will consider under what conditions the employer has the right to change the employment contract unilaterally. There are only two of them.
First, as we wrote above, you were not able to keep the old working conditions.
Secondly, your organizational or technological working conditions are changing, which leads to the appearance of reasons for changing the employment contract. An error in this regard, for example, is such an application of Art. 74 of the Labor Code of the Russian Federation.
Example 2 In one of the organizations, before the arrival of a new management, an employment contract was concluded with each of the employees, according to which, in the event of dismissal of an employee at the initiative of the employer, the latter undertakes to pay the first 10 average monthly salaries. The author of this article can only guess about the motivational factors that prompted the previous employer to insert such a clause into the employment contract. However, the new leadership decided to get rid of the "old guard" in one of the major divisions and carry out staff reductions. (It is clear that to cause a simultaneous acute desire in two hundred workers to leave on own will or by agreement of the parties is not so simple.) However, the need to fulfill the condition of the “ill-fated” clause of the employment contract threatened the organization with fabulous losses. What can be done in such a situation? As a result, the new employer asked for help in resolving this situation in a legal advice office, which gave the company's management the following "legal" advice.
The management of the enterprise can unilaterally change this condition of the employment contract, based on Art. 74 of the Labor Code of the Russian Federation, according to which, for reasons related to changes in organizational and technological working conditions, it is allowed to change the terms of the employment contract determined by the parties without changing the labor function. The reason for changing this “ill-fated” clause of the employment contract (or, more simply, its removal from there) will be a change in the entire system of benefits and compensations at the enterprise.
In the opinion of the author of this article, this legal advice actually given to the company was not based on the law for two reasons. We will talk about the second one below. The first reason why this advice was at least not correct, the next one. Lawyers made a logical error in determining the causality of the phenomenon and its consequences. After all, the system of benefits and compensations is, simply speaking, all those benefits and compensations that all employees of the organization receive in accordance with the relevant clauses of the employment contracts that each of them has in their hands. In other words, a beautiful generalizing phrase (changing the system of benefits and compensations) is, in fact, the very fact of changing the essential terms of employment contracts for a group of employees. However, the “reason” that “justifies” these actions of the employer is not indicated. Let's take an example for comparison.
The company switched to more modern equipment, the production technology changed (reasons), in connection with which (consequence) the mode of operation of the entire enterprise changed, i.e. the work schedule of each individual employee (i.e. the relevant clauses of each employment contract).
If the same logical error was made in these reasonings as in the first case, then we would say that the mode of operation of the entire enterprise is changing - the work schedule of a particular employee is changing (i.e., modern equipment to justify such actions could not be purchase and production technology does not change).
Conditions of the employment contract that can be changed
Now let's talk about the conditions that the employer has the right to change. Here, too, everything is not so simple. The only thing that is absolutely clear is that you cannot change the functionality of an employee. As for the possibility of changing other conditions of the employment contract, they are debatable. So, in the opinion of the author of this article, it can be used to change only the working conditions, and not the conditions for changing or terminating the employment contract. This, in our opinion, follows from the context of Part 3 of Art. 74 of the Labor Code of the Russian Federation, which says that if the employee does not agree to work in the new conditions, then the employer is obliged in writing to offer him another job available to the employer (and not if he does not agree, including changing the conditions for changing or terminating the employment contract). That is, from this norm we can conclude that the legislation “suggests” a significant change in the clauses of the employment contract that determine the conditions for the employee’s work, and not the conditions for his dismissal. Here is the second reason why, in our opinion, the advice given by lawyers (see example 2) clearly does not comply with the law. After all, the consultants, it seemed to them, came up with a clever way to change the procedure for firing employees, and not change the conditions for their work.
A rather controversial question: is it possible to change the salary of an employee? If some lawyers are sure that the employer cannot do this unilaterally for any reason, then others are convinced that since the only directly named working condition that cannot be changed is the employee’s functionality, then the employer has the right to change the amount of his monthly remuneration. To the author of this article, the second point of view seems deeply doubtful, because then some strange conflict appears in labor legislation and it consists in the following. In hours 5 and 6 of Art. 74 of the Labor Code of the Russian Federation it is written that in the case when the reasons indicated in Part 1 of Art. 74 of the Labor Code of the Russian Federation, may entail the mass dismissal of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, introduce a part-time (shift) and (or) part-time working week for up to six months.
If the employee refuses to continue working 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 this Code. At the same time, the employee is provided with appropriate guarantees and compensation.
That is, if we proceed from the fact that the employer has the right to unilaterally change the salary of an employee, the following conflict is obtained. If the employer uses Parts 5 and 6 of Art. 74 of the Labor Code of the Russian Federation and with their help decides to establish part-time work for employees, and, accordingly, payment in proportion to the hours worked (which, in the opinion of the author of this article, is absolutely legitimate, because the salary itself does not decrease, it is simply accrued proportionally), then in the case of If an employee refuses to work on such payment terms, he will have to be fired in the manner prescribed for staff reduction (that is, not only with a two-month warning, but also with the payment of two, and possibly three, average monthly salaries). If our employer decides to simply cut the salary of its employees unilaterally, then, firstly, they will work for less money full (rather than shortened) working hours. Moreover, if they refuse to work on such conditions, it will be possible to dismiss them not at all due to staff reductions, but according to paragraph 7 of Art. 77 of the Labor Code of the Russian Federation with the payment of only a two-week severance pay.
However, it is deeply doubtful that the legislator provided for the possibility for the employer of such a cunning way out of the situation. And, in our opinion, it is still impossible to change the salary of an employee unilaterally.
Another controversial question, which is difficult to give an unambiguous answer: is it possible to change the conditions of the employee's social package and in what cases? Let's take a concrete example.
Example 3 In one company, according to a local regulation referred to in the employment contract, the employer paid the difference between temporary disability benefits and actual earnings to employees in the event of their illness. When the crisis broke out, the company simply did not have money for such generous gestures and the employer decided to remove this clause from the contract. Whether this can be done or not is difficult to answer. After all, these benefits are not working conditions or even remuneration for work, but social guarantees for employees in the event of their temporary disability.
And, of course, there are the terms of the employment contract, which you definitely have the right to change: establish part-time or part-time work for employees, change the work schedule, transfer the employee to another structural subdivision(for example, a lawyer who worked in the legal department is transferred to the financial department to advise his employees on taxes and tax optimization, while the functionality of the employee in accordance with the employment contract remained unchanged), etc.
I would like to draw the reader's attention to the following point. When in practice you will restructure your organization, you must clearly understand in which case you are dealing with a change in the terms of an employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, in which cases - with a reduction in staff, and in which - you can do something only with the consent of the employee.
Example 4 You want to make two departments - marketing and advertising - one. Most likely, the position of one of the heads of departments will be reduced. The second will be promoted to the position of head of the marketing and advertising department. You have the right to change the name of his position unilaterally, but the functionality - only if he himself agrees to this. Change the structural unit of all other employees in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, you have the right.
The procedure for changing the employment contract in accordance with
from Art. 74 Labor Code of the Russian Federation
The procedure for amending an employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, in principle, is not very complicated. The HR specialist needs to prepare two copies of the notification with a warning about changes in the essential terms of the contract. At the same time, as we noted above, in the notice now, in accordance with the new version of this article, it is necessary not only to indicate the clauses of the employment contract that the employer wants to correct, but also the reasons that are motivational for introducing such changes. You will give one copy in your hands to the employee, on the other, which remains with you, the employee will have to sign for receiving his copy.
In practice, the question often arises of how to calculate the 2-month notice period for changing the terms of an employment contract. In order to answer this question, it is necessary to refer to Art. 14 of the Labor Code of the Russian Federation. According to it, 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. That is, if you warn the employee about changing the employment contract on the 14th day of a certain month, then the calculation of the two-month period will begin on the 15th day of this month and, accordingly, the day of dismissal will be the 14th day of the corresponding month.
Note. A foreign citizen who has a work permit has the right to independently find a job with an employer.
As a rule, the employee does not immediately agree or unwillingness to work on new conditions. If we are talking about changing the terms of an employment contract, it is enough a large number employees, then eventually the HR employee may forget who agreed to the new working conditions and who refused them. Moreover, the unwillingness to work in accordance with the new terms of the employment contract is often expressed by employees orally. Therefore, it is better to immediately offer appropriate vacancies when warning an employee about a change in working conditions. It should now be, as we already wrote above, all the vacancies of the organization - both corresponding to the qualifications of the employee, and vacancies that are below his qualifications. The only exceptions are those vacancies of the company that are located in another area. You are obliged to offer them if it is provided for by the collective agreement or agreement. It should be remembered that vacancies must correspond to the state of health of the employee. You can either make a separate document in two copies (on what remains in your hands, the employee must sign for receipt), or you can offer vacancies already in a document in which you will notify about changes in the terms of the employment contract. In this case, you can use the following wording: “In the event that you refuse to continue working under the new conditions, we can offer you the following vacancies currently available in the organization ...“.
Accordingly, if the employee does not agree to change the terms of the employment contract, but is ready for a transfer, the latter is drawn up in the standard manner.
If neither the new working conditions suited the employee, nor a suitable position in which he would like to work was found, it is necessary to dismiss the employee under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the terms of the employment contract determined by the parties).
If the employee agrees to work under the new conditions, then two months after receiving the notification, it is necessary to sign an additional agreement with him to his employment contract. It is worth paying attention to the fact that some lawyers believe that it is possible not to do this.
Their reasoning is that if the employee was initially ready to sign an additional agreement - compliance with the procedure provided for in Art. 74 of the Labor Code of the Russian Federation, it would not be necessary to introduce new working conditions. It would be possible to immediately draw up an addendum to the employment contract and not wait two months. In this case, supporters of this point of view believe that it is important that the employee did not express disagreement with the change in the terms of the employment contract determined by the parties, which means that the contract changes automatically and no additional document is required. Nevertheless, in our opinion, signing an additional agreement to the employment contract in this case will not be superfluous, as well as issuing an appropriate order.
This is a general procedure for changing the terms of an employment contract determined by the parties.
But, as we wrote above, in Art. 74 of the Labor Code of the Russian Federation provides for a situation (the establishment of an incomplete day for an employee or an incomplete working week), when in the event of an employee refusing to work on new conditions, he must be dismissed in the manner prescribed by the reduction in staff. Separately, we will not consider the dismissal procedure due to staff reductions here, since it is beyond the scope of this article. However, let's pay attention to another debatable issue related to the possibility of the employer introducing part-time work or part-time work week. In accordance with Part 5 of Art. 74 of the Labor Code of the Russian Federation, such a mode of operation can be introduced for up to six months. And after that, workers should, logically, return to their previous mode of work: full-time, full-time. But here is the question: for how long the employer should return to full-fledged work, how short it can be, the legislator, alas, has not been resolved. And in this situation, it is not clear whether the employer has the right to transfer employees to full-time work for a short period of time in order to almost immediately carry out a repeated procedure for warning employees about changing the terms of the employment contract determined by the parties and introducing again part-time work or part-time work week.
People's Accounting Encyclopedia on Clerk.Ru
(as amended as of 06/16/2017)
Federal Law No. 90-FZ of June 30, 2006 reworded Article 74 of this Code, which shall enter into force 90 days after the official publication of the said Federal Law
See the text of the article in the previous edition
Article 74 Changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
Source GUARANTOR
See Encyclopedias and other comments on article 74 of the Labor Code of the Russian Federation
In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering 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, with the exception of changes in the work function of the employee.
The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with this Code.
In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by this Code for the adoption of local regulations, introduce a part-time (shift) and (or) part-time working week for up to six months.
On the notification of the employment service when introducing a part-time (shift) and (or) part-time working week regime, see Law of the Russian Federation of April 19, 1991 No. 1032-1 "On employment in the Russian Federation"
If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with this Code. At the same time, the employee is provided with appropriate guarantees and compensation.
Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.
New edition Art. 74 Labor Code of the Russian Federation
In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering 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, with the exception of changes in the work function of the employee.
The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the absence of the specified work or the employee's refusal of the proposed work, the employment contract is terminated in accordance with.
In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established for the adoption of local regulations, to introduce a regime part-time work (shift) and (or) part-time work week for up to six months.
If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with. At the same time, the employee is provided with appropriate guarantees and compensation.
Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.
Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.
Commentary on Article 74 of the Labor Code of the Russian Federation
Special consideration deserves the procedure for changing previously defined terms of an employment contract on the basis provided for in Article 74 of the Labor Code of the Russian Federation. As follows from this article, the need to change the terms of an employment contract may be due to a change in organizational or technological working conditions.
These changes may affect the equipment and production technologies used by the employer, be expressed in the structural reorganization of production, for example:
changes in the technology of work, due to the tightening of requirements for the quality of products manufactured by the enterprise;
changes in the technical equipment of the enterprise (relevant structural divisions) due to the need to improve it due to wear and tear, obsolescence of equipment, etc.;
changes in the organization of workplaces based on the results of their certification;
changes in organizational structure enterprises due to the introduction of a new (updated) staffing table.
The initiative in changing the terms of the employment contract in this case belongs to the employer. However - we emphasize - these changes cannot affect the conditions that determine the labor function of the employee. We note further that a change in organizational and technological working conditions may entail this employee changing the terms of the employment contract, in accordance with which the following are determined:
place of work (structural unit or area of work, if the relevant essential condition was previously included in the employment contract);
rights and obligations (powers) of the employee;
characteristics of working conditions, including those entailing the establishment (cancellation of previously established) compensations and benefits for this employee for work in difficult, harmful and (or) dangerous conditions;
the regime of work and rest established for the employee;
terms of remuneration for the worker.
Article 74 of the Labor Code of the Russian Federation contains a number of requirements for changing the terms of an employment contract on the specified basis, the preliminary fulfillment of which by the employer is mandatory. So, the employee must be notified of the entry into force of the relevant changes no later than two months before the expected date of their introduction by the employer in writing and against signature before the expected date of their introduction ().
In the event that the employee, for one reason or another, does not agree to continue working in the new conditions, the employer is obliged to immediately offer him (also in writing and against signature) another job available in the area (vacant position) corresponding to the state of health of the employee, which he can carry out taking into account the available qualifications. Such offers may be sent to the employee in the form of a list of vacancies.
In the absence of the specified work, as well as in the event that the employee refuses the work offered to him (taking into account the foregoing), the employment contract with him is terminated in the manner and on the grounds provided for.
Another commentary on Art. 74 of the Labor Code of the Russian Federation
1. Article 74 interprets one of the types of transfers discussed in - when the reason that led to the change in one or more conditions of the employment contract was changes in organizational or technological working conditions. At the same time, it is assumed that the labor function of the employee, defined in the employment contract, remains unchanged.
2. A market economy is characterized by high dynamism of those organizational and technological conditions in which labor is used; therefore, the legislator pays special attention to the legal consequences that occur as a result of changes in such conditions.
In its most general form, technology is understood as a system of tools and machines, as well as the methods of their application and functioning. Consequently, a change in the technological conditions of labor is expressed in the introduction of new tools, machines, as well as in a change in the processes of their operation.
The organization of labor is a complex and multidimensional category. There are at least two aspects of labor organization. First, since human labor as an object of legal regulation is of a social nature, it is carried out in interaction with other people; secondly, social labor presupposes its monetary value. Therefore, the organization of labor can be understood as the streamlining of relations between people in the process of their joint labor activity, as well as the organization of wages. In this regard, the organization of labor involves the organization of the regime of work and rest of workers, their interaction in the labor process, the management of the labor process, its regulation, accounting, forms and systems. wages etc. Thus, a change in organizational working conditions can be understood as a change in these and other similar factors within which the worker's labor activity is carried out.
Changes of a technological and organizational nature may result in a change in the essential conditions of an employment contract, while the employee's labor function remains the same. Since the basis for the application of the rules established by Art. 74 of the Labor Code are specific circumstances defined by this article; in the event of a dispute, the employer must prove the existence of these circumstances, i.e. changes in organizational or technological working conditions. Otherwise, the actions of the employer aimed at changing the essential terms of the employment contract will be declared illegal.
In this regard, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure, the employer is obliged, in particular, 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 of jobs based on 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 or the change in the terms of the employment contract determined by the parties cannot be recognized as legal (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
3. It is assumed that the change in the terms of the employment contract, which occurs as a result of changes in organizational and technological working conditions, is carried out at the initiative of the employer, therefore the employer is obliged to notify the employee in writing no later than two months before their introduction (part 2 of article 74 TC RF).
The legislator does not specify the procedure for notifying an employee of a change in the terms of an employment contract. In practice, it may be recommended to issue an order (instruction) of the head of the organization or other competent person on the transition to new working conditions, with which the employee must be familiarized against receipt no later than the period specified in the law.
Employer - individual is obliged to notify the employee in writing about changes in the essential terms of the employment contract at least 14 calendar days(cm. ).
The employer - a religious organization has the right to make changes to the content of the employment contract, subject to a written warning of this to the employee at least seven calendar days before their introduction (see to it).
4. If the employee refuses to continue working in the new conditions, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such, any other work that the employee can perform taking into account his qualifications and condition health.
The legislator does not establish the terms during which the employer must offer the employee another job in the organization, as well as the specific form in which such an offer can be made. As one of the options for solving the problem, it can be recommended, together with the order on the upcoming change in the essential terms of the employment contract, to present the employee, as an annex to the order, with a list of all vacancies available in the organization. The employee, having familiarized himself with the order and the list of works offered to him against receipt, can at the same time express his will - by agreeing to a transfer to any job corresponding to his qualifications and state of health, or refusing such a transfer.
If the employee agreed with the transfer to another job available in the organization, such a transfer is formalized by an order (instruction) and an additional agreement to the employment contract, indicating in it the new conditions that are included in the current employment contract.
In the absence of the specified work or if the employee refuses to be transferred to another job, the employment contract with him is terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.
As follows from Art. 74, the employer is obliged by law to offer the employee the vacancies he has in the given locality. The employer is obligated to offer vacancies in other localities if this is provided for by the collective agreement, agreements or employment contract. At the same time, the employer has the right to offer any vacancy to the released employees, regardless of its location.
5. A change in organizational or technological working conditions may lead to a change in the terms of an employment contract not for one, but for a group of employees.
One of the options for solving the problems arising in connection with this is formulated by the legislator. By virtue of Art. 74 of the Labor Code of the Russian Federation, if changes in organizational or technological working conditions may lead to mass layoffs of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time regime for up to six months.
The condition on the length of working time is one of the essential working conditions, therefore the introduction of part-time work is allowed only with the consent of each employee. The employee can express his will by familiarizing himself with the relevant order (instruction) of the employer. At the same time, since the establishment of part-time work is not permanent, it is not advisable to draw up an additional agreement attached to the employment contract that defines this condition. An additional agreement is possible if the employer and the employee reach an agreement that the latter's part-time work will be permanent.
If the employee refuses to continue working on these conditions, the employment contract is terminated with the provision of appropriate guarantees and compensations to the employee (see Art. 81, - and commentary on them).
According to 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 February 5, 1993 N 99, the main criteria for mass layoffs are the indicators of the number of dismissed workers in connection with the liquidation of the organization or the reduction in the number or staff of workers for a certain calendar period. These include:
a) liquidation of an enterprise of any organizational and legal form with a staff of 15 or more people;
b) reduction in the number or staff of employees of the enterprise 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;
c) dismissal of employees in the amount of 1% of the total number of employees due to the liquidation of enterprises or reduction in the number or staff within 30 calendar days in regions with a total number of employees less than 5 thousand people.
Currently, the criteria for mass layoffs are defined in industry and/or territorial agreements, so the cited rules apply only if there are no corresponding provisions in these agreements (see).
For the procedure for taking into account the opinion of the elected body of the primary trade union organization, see the commentary to them.
6. From the content of the previous paragraph, it is obvious that the rules of Parts 5 and 6 of Art. 74 of the Labor Code of the Russian Federation are not universal in nature, since: a) their application is the right, but not the obligation of the employer; b) they are applied in cases of mass dismissal of workers; c) are temporary in nature, since they are used "in order to save jobs" (i.e. it is assumed that the circumstances that led to the reduction in working hours are of a transient nature and after their elimination, employees will be set a working time regime due to labor agreement).
In the absence of at least one of the formulated conditions, these rules do not apply and the released workers can be dismissed according to the rules of paragraph 2 of Art. 81 of the Labor Code of the Russian Federation with the provision of appropriate guarantees and compensations, in particular, in compliance with the rules interpreting the preferential right to remain at work when reducing the number or staff of the organization's employees.
7. The legislator proceeds from the unconditional recognition of the fact that changes in working conditions are always carried out at the initiative of the employer; therefore, it is established that changes in the terms of the employment contract cannot be introduced that worsen the position of the employee in comparison with the terms of the collective agreement, agreement (part 8 of article 74 of the Labor Code of the Russian Federation). In addition, it must be borne in mind that local regulations providing for the introduction, replacement and revision of labor standards are adopted by the employer, taking into account the opinion of the representative body of employees, and employees must be notified of the introduction of new labor standards no later than two months in advance (see).
Thus, new working conditions, entailing a change in the employment contract, can be introduced solely by the employer only on the condition that they do not worsen the position of the employee in comparison with the terms of the collective agreement (agreement); otherwise, they can be introduced only if the content of the collective agreement (agreement) is revised accordingly, and, if necessary, the opinion of the workers' representative body is taken into account.
At the same time, a change in the terms of an employment contract may be the result of objectively acting factors, for example, a change in the situation in the commodity markets in which the employer operates, entails the need to reform the applied technologies or labor organization. In such cases, the will of the employer is not aimed at changing the terms of the employment contract, but at adapting it to new economic realities through the reorganization of production in order to ensure its existence as an economic entity. Since the employer can make changes to the content of the employment contract, provided that appropriate changes are made to the collective agreement or agreement (which is possible only if there is a counter expression of the will of the other party (parties) in the contract (agreement), in the absence of such an expression of will, the implementation of Article 74 of the Labor Code of the Russian Federation becomes impossible.In this case, the employer is forced to either amend the employment contract on the basis of general rules on transfers to another permanent job (see articles , and commentary to them), i.e. with the consent of the employee; or apply the rules on temporary transfers in connection with the occurrence of extraordinary circumstances (see); or apply the legal mechanisms established by law to terminate the employment contract (see).
8. The legislator abandoned the term “change of essential working conditions” (part 3 of article 25) previously used in the Labor Code, replacing it with the concept of changing the terms of an employment contract. Based on this, they do not matter and do not entail any legal consequences arbitrarily major changes in working conditions, if they are not related to a change in the content of the employment contract. For example, installation of new equipment, computers, accessories, etc. are not always associated with a change in the labor function (specialty, profession, qualification or position), the amount of wages, the duration or mode of working hours and other conditions established by the employment contract, but this may entail significant changes in the actual working conditions of the employee. Since the content of the employment contract does not change in this case, such changes can be made by the employer without observing the rules on transferring to another job, including the rules established by the commented article. In this case, the employee who does not want to continue working in the new working conditions retains the right to terminate the employment contract on his own initiative
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