Changes in working conditions at the initiative of the employer and employee. Changes in the terms of the employment contract at the initiative of the employer Changes in the terms and conditions of the employment contract determined by the parties are permitted

Text of Article 72 of the Labor Code of the Russian Federation in the new edition.

Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, except for the cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary to Art. 72 of the Labor Code of the Russian Federation

Comments on articles of the Labor Code will help you understand the nuances of labor law.

§ 1. Freedom and voluntariness of will when concluding an employment contract and various legal guarantees when hiring, transferring and dismissing an employee contribute to the stability of employment contracts.

A change in the employment contract entails a change in the employment relationship. And this, in turn, affects the stability of labor relations, in which both employees and the employer are interested.

§ 2. The legislator prohibits the employer from requiring the employee to perform work not stipulated by the employment contract, except in cases provided for by the Labor Code and other federal laws (Article 60 of the Labor Code), which enshrines the principle of stability and certainty of the employment contract.

§ 3. A change in an employment contract is a change in its content, i.e. one or more of its conditions.

Changes in the terms of an employment contract determined by the parties themselves can only take place by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. It should be borne in mind that the agreement to change the terms of the employment contract determined by the parties is concluded in writing. This rule should be strictly followed.

Thus, changing the content of the employment contract is possible in the following forms:

a) transfer to another job (Article 72.1 of the Labor Code of the Russian Federation);

b) changing the terms of the employment contract determined by the parties (Article 74 of the Labor Code of the Russian Federation).

But ch. 12 of the Labor Code, in addition to these two forms of changing the employment contract, contains two articles (Article 75 “Labor relations when changing the owner of the organization’s property, changing its jurisdiction, its reorganization” and Article 76 “Removal from work”), which do not change the essential conditions of the labor contract itself agreement. Therefore, we do not classify them as forms of changing the employment contract. They are only placed by the legislator in Chapter. 12, called “Change of the employment contract”, since they are related to the further validity of the employment contract.

The following commentary to Article 72 of the Labor Code of the Russian Federation

If you have questions regarding Art. 72 of the Labor Code, you can get legal advice.

1. As follows from the contents of Chapter. 12 of the Labor Code, a change in an employment contract should be understood primarily as various types of innovations in the content and subject composition of the employment contract, including transfers to another job (Articles 72 - 74 of the Labor Code), as well as a change in the labor relationship due to a change in the owner of the organization’s property, a change in its jurisdiction or reorganization (Article 75 of the Labor Code) and, finally, removal from work (Article 76 of the Labor Code).

2. By virtue of the commented article, transfer to another job is associated by the legislator with a change in the terms of the employment contract determined by the parties (i.e., a change in the content of the employment contract). At the same time, not every change in the content of an employment contract is a transfer to another job, just as a transfer to another job is not always associated with a change in the content of the employment contract (see Article 72.1 of the Labor Code and the commentary thereto).

3. In its meaning, the commented article is related to Art. 60 TK. Both articles are aimed at ensuring stability of the terms of the agreement concluded by the parties, i.e. the principle of contract law “contracts must be performed”. Thus, changing the content of the employment contract in accordance with these articles is not allowed unilaterally, but as an exception to the general rule it is possible at the initiative of one party or a third party. All these cases are provided for by the Labor Code.

4. In accordance with the commented article, the terms of an employment contract can be changed only by agreement of the parties and only in writing. However, the method of formalizing a change in the terms of an employment contract depends on whether such a change is temporary or permanent.

The current practice of concluding a new employment contract in connection with a change in one or more working conditions (for example, due to a transfer to another position) cannot be considered correct, since the fate of the previous employment contract remains unclear. Consequently, in order to conclude a new contract, the parties must first terminate the old contract, which is hardly justified.

The formalization of a change in one or more conditions that make up the content of an employment contract with its previous subject composition should differ depending on whether such a change is temporary or permanent (see Articles 72 - 74 of the Labor Code and the commentary thereto).

If the change in the content of the employment contract is permanent, it is advisable to draw up an additional agreement to the contract, which interprets the agreement by the parties to change one or more conditions that make up its content.

In the event of a temporary change in the content of the employment contract, for example due to the occurrence of extraordinary circumstances or the need to replace a temporarily absent employee, consent to such a transfer can be achieved by issuing a transfer order, on which the employee makes a note of consent to the temporary transfer and seals it with his signature . At the same time, with a temporary transfer, especially one carried out for a long period, a different procedure for executing such a transfer is not excluded, including through the conclusion of an additional agreement to the employment contract.

Changing working conditions at the initiative of the employer is allowed only with the consent of the parties, that is, if the employee has officially agreed that his working conditions are changing. In difficult economic conditions, changes to the employment contract are becoming more common. The employer can reduce wages, transfer the employee to a shortened work week or to a completely different workplace, or even lay off the employee. The deterioration of the situation in the country should not be the basis for the working conditions of a particular employee without consent.

How working conditions may change

Working conditions are usually understood as a combination of the following factors:

• social and economic - everything that is associated with wages, social status and service to the employee;
• organizational and technical – directly related to the work process;
• household and economic – opportunities for food, recreation, sanitary and living conditions;
• climatic – features of the area (location, geology, weather and nature, etc.) where the employee carries out his activities.

All these conditions are prescribed in personal and collective labor contracts. If employees have signed the relevant documents, they are considered to agree with the conditions listed therein. However, the conditions in which the enterprise operates may change. An employer may initiate a change in working conditions (any of the factors listed above), but he must do this in strict accordance with Art. 74 Labor Code.

There is no single list of working conditions, but most often changes are made to:

• working hours;
• the organizational structure of the enterprise, which means the load on employees is redistributed;
• terms of remuneration;
• technological conditions - changes in technology, improvement of the workplace, etc.

Employees are most often concerned about changes in wages, however, there is no need to agree without prior consideration, for example, to the introduction of new equipment or a change in workplace. An assessment of working conditions in the workplace is important - Law No. 426-FZ regulates this assessment, the results of which determine guarantees and payments to the employee, as well as insurance contributions to funds. Assessment of working conditions, or as they used to say - certification of workplaces based on working conditions - in 2016 is mandatory not only for organizations, but also for individual entrepreneurs, if it has not been carried out since 2014. The frequency of assessment of existing working conditions is at least once every five years. The results of the assessment may become a legitimate reason for introducing clarifications into the existing contract.

Amendments to the contract

All working conditions are listed in the contract. If circumstances change - at the initiative of management or an employee - corresponding amendments are made to the personal employment contract. The employee's consent to change working conditions is obtained in writing. The employer must notify the person about the changes two months in advance, and if the employee works for an individual entrepreneur - two weeks in advance, in a religious organization - seven days in advance. The notice must be properly executed and handed over to the employee against signature. The employer is obliged to explain to the employee the reasons why his working conditions are changing. This could be, for example, a change in the technological process at the enterprise. A decrease in the enterprise’s profit, worsening market conditions and other similar factors cannot and will not be considered by the court as objective conditions for changing working conditions.

If the employee does not agree to change the conditions, he may be offered work in other positions or in other structural divisions of the enterprise, and the employer has the right to offer work with a lower salary.

If there is no consent to transfer to another place of work, the contract with the employee is terminated and severance pay is paid.

Is it possible to challenge dismissal?

An employee can go to court to have his dismissal due to lack of consent to change working conditions declared illegal. The court recognizes it as such, but only if the employer does not prove that the change in conditions was caused by a change in the technological process at the enterprise, reorganization of the enterprise, or an assessment of working conditions in the workplace. Other factors - for example, the economic situation - cannot become a reason for introducing circumstances worsening the employee’s situation into the contract and, accordingly, for dismissal.

The basis for going to court may also be a violation of the procedure for making changes to working conditions - the lack of a properly executed notification to the employee, failure to provide the opportunity to transfer to vacant positions, etc.

You can go not only to court, but also to the Labor Inspectorate - where the employee will be advised about the possibility of restoring previously existing working conditions.

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

The basis of labor relations is the employment contract concluded between the employee and the employer. Its contents are the terms agreed upon 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 hours, level of remuneration, etc.), and the employee, when applying for a job with this particular employer, agrees with the conditions offered to him. In the same way, an employer interested in this particular job candidate is ready to accept and enshrine in the employment contract the conditions that such a “valuable” employee asks for.

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

What happens when the terms of the employment contract determined by the parties change at the initiative of the employer due to some objective reasons? Obviously, an employee who is accustomed to the previous conditions has every right not to agree to such changes.

Situations may also arise that seem to hardly affect the interests of the employee, but nevertheless they do not suit him. We are talking about cases of renaming, reorganization, change of jurisdiction or change of owner of the organization’s property.

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

CHANGES IN WORKING CONDITIONS

In the course of labor activity, it is possible to change both working conditions and the terms of the employment 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 workers work, caused by changes in labor legislation (including labor protection legislation) and other regulatory legal acts containing labor law standards; social partnership agreements concluded at the federal, interregional, regional, sectoral (intersectoral), territorial levels; collective agreement valid for a specific employer; local regulations; agreements between employer and employee. If we turn directly to the provisions of Art. 117, 147, 2161, 220 Labor Code of the Russian Federation, etc., then working conditions are considered as:

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

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

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

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

a) lawfully adopted a local regulatory act taking into account Art. 372 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 established labor standards” (Article 21 of the Labor Code of the Russian Federation).

Otherwise, an employee’s refusal to perform labor duties without good reason due to a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation) is considered a violation of labor discipline, which may lead to adverse consequences for the employee in the form of disciplinary measures. The Plenum of the Supreme Court of the Russian Federation in paragraph 35 of 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 referred to as Resolution No. 2) explains the essence of this violation.

Thus, failure by an employee to perform without good reason is failure to fulfill job duties or improper performance through the fault of the employee of the job 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.). P.). Such violations, in particular, include the refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in the established order (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this contract, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation).

At the same time, the Supreme Court of the Russian Federation especially emphasizes that 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 a basis for termination of the employment contract under clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 74 Labor Code of the Russian Federation.

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

Personnel Dictionary

Working conditions are a set of factors in the working environment and the labor process that affect the performance and health of the employee (Article 209 of the Labor Code of the Russian Federation). Working conditions can also be considered as material and technical conditions related to the operation of equipment, production technology, safety of the labor process, etc., which are usually objective in nature. Normal working conditions according to Art. 163 of the Labor Code of the Russian Federation: good condition of premises, structures, machines, technological equipment and equipment; timely provision of technical and other documentation necessary for work; proper quality of materials, tools, other means and items necessary to perform the work, their timely provision to the employee; working conditions that meet labor protection and production safety requirements. Occupational risk is the likelihood of harm to health as a result of exposure to harmful and (or) hazardous production factors when an employee performs duties under an employment contract or in other cases established by the Labor Code of the Russian Federation and other federal laws (Article 209 of the Labor Code of the Russian Federation).

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 to change the terms of the employment contract determined by the parties must be drawn up in writing.

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

1) transfer (permanent or temporary);

2) a change in the terms of the employment contract determined by the parties, with the exception of the terms on the labor function.

When changing the terms of an employment contract at the initiative of the employer, it is necessary to comply with the rules and procedures provided for in Art. 74 Labor Code of the Russian Federation. In this case, changes in organizational or technological working conditions must be documented by the employer. 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 a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement jobs based on their certification, structural reorganization of production, and did not worsen the employee’s position in comparison with the terms of the collective agreement or agreement. In the absence of such evidence, termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation or the very change in the terms of the employment contract determined by the parties cannot be recognized as legal.

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

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

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

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

ORGANIZATIONAL CHANGES

The continuation of labor relations when the owner of the organization’s property changes, the organization’s jurisdiction changes, or its reorganization is regulated by Art. 75 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 owner of the organization's property

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

An exception to the above rule is the ability of the new owner to terminate the employment relationship 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 Labor Code of the Russian Federation. The specified categories of employees cannot be dismissed on the above grounds when the jurisdiction (subordination) of the organization changes, unless there is a change in the owner of the organization’s property.

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

Renaming an organization

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

By the way

Article 74 of the Labor Code of the Russian Federation provides for changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions. Despite the sufficient prevalence of this norm in law enforcement activities in connection with crisis phenomena in the Russian economy, the legislator does not define what should be understood by the category “change in organizational or technological working conditions.” Nevertheless, this aspect is very important, since such changes give the employer the opportunity to change the terms of the employment contract, with the exception of changing the employee’s labor function, on his own initiative. The lack of appropriate decoding in labor legislation allows us to highlight only a few changes in organizational or technological conditions: 1) Updating the technological process based on the introduction of new equipment and modernized technologies. A technological process is a set (system) of work actions, production operations for the extraction and processing of raw materials into semi-finished or finished products. Technology includes methods, techniques, mode of operation, sequence of operations and procedures; it is closely related to the means, equipment, tools, and materials used. The technology of a particular production is enshrined in relevant documents of a technological nature, in particular, instructions containing a detailed description of the employee’s labor actions on specific devices, machines or other equipment. Changes in technology will inevitably have an impact on the content of labor and, as a consequence, the terms of the employment contract. Currently, automation of the technological process and production as a whole is becoming widespread, i.e., the use of a set of tools that allow production processes to be carried out without direct human participation, but under his control; automation tends to increase the output of employers and improve the quality of labor output. But at the same time, on the one hand, modernization makes work easier and improves its quality, and on the other hand, it entails a reduction in the number of workers and mass layoffs. 2) Improving workplaces based on their certification. Certification of workplaces according to working conditions - assessment of working conditions at workplaces in order to identify harmful and (or) dangerous production factors and implement measures to bring working conditions into compliance with state regulatory requirements for labor protection (Article 209 of the Labor Code of the Russian Federation). The procedure for certification of workplaces is established by the federal executive body, which carries out the functions of developing state policy and legal regulation in the field of labor. 3) Structural reorganization of production. Organizational changes must be associated with changes in the organization of work, which involves: Selection and professional training of personnel; Development of methods for performing a particular type of work; Division and cooperation of labor in a team; Arrangement of workers in accordance with the nature of the tasks facing them; Organization of workplaces for each employee to perform the functions assigned to him; Creation of working conditions that provide the opportunity to carry out work activities; Establishing a certain measure of labor for workers through rationing, which makes it possible to achieve the necessary quantitative proportions between different types of labor in accordance with the nature and volume of work; Organization of wages; Establishing labor discipline that ensures the necessary order and consistency in work. Thus, a change in organizational or technological working conditions can be understood, for example, as a more rational use of personnel, a change in the structure of the employing organization, the introduction of new technologies, a change in working hours, etc.

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

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

Change of jurisdiction or reorganization of the organization

Quite complex problems in practice arise in connection with reorganization or changes in 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, part 1, art. 77 Labor Code of the Russian Federation.

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

By the way

Note that the wording “change of owner of the organization’s property” used in Art. 75 of the Labor Code of the Russian Federation is not precise and is not used in civil legislation, and therefore simply mentioning the term “property” in the Code is clearly not enough. Property is an economic category, viewed as the complete dominion of a person over a thing, closely related to relations of production and the means of production. At the same time, certain property is provided to a legal entity by the founders, who have either rights of obligation or ownership of the property of the legal entity, as well as other property rights. As a result, it is the founders who transfer property powers of various amounts to legal entities, which directly depends on legislative requirements regarding a certain organizational and legal form of a legal entity, therefore the private law constructions of civil law used in the Labor Code of the Russian Federation must be detailed in law enforcement activities. The Plenum of the Supreme Court of the Russian Federation in paragraph 32 of Resolution No. 2 clarifies that a change in the owner of an organization’s property should be understood as a transition (transfer) of ownership of the organization’s property from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. i.e. upon alienation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 No. 178-FZ “On the privatization of state and municipal property ", Article 217 of the Civil Code of the Russian Federation); when property owned by the organization is converted into state property; when transferring state enterprises to municipal ownership, and vice versa; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation, and vice versa.

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

In support of 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 entry into the Unified State Register of Legal Entities. However, after this, a new legal entity was created with the same name and only registered under 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 the transfer of rights and obligations by way of succession to other persons. At the same time, according to Part 5 of Art. 58 of the Civil Code of the Russian Federation, when a legal entity of one type is transformed into a legal entity of another type (change in 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 above example, it was actually the reorganization that actually took place - all the rights and obligations of the previously existing organization were completely transferred to the newly created organization, and the reorganization is not grounds for termination of the dismissal of an employee at the initiative of the employer.

So, if the employer carries out all the procedures established by labor legislation for changing working conditions and the terms of the employment contract with a specific employee, then the employee has the obligation to perform the labor function in the current situation and in the new conditions. But if the employee does not agree to continue working under the new conditions, then the employer has no choice but to terminate the employment contract on appropriate grounds. We have provided a list of situations in which an employee has the right to choose, and the consequences of the employee’s consent or disagreement to continue working. table.

Cases and consequences of changes in working conditions

By the way

The general rules for the reorganization of legal entities are established by Art. 57-60 of the Civil Code of the Russian Federation, and the features of the reorganization of various types of legal entities and the succession of their reorganization are determined by the laws on the relevant types of legal entities. For example, Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” establishes the process of reorganization of joint-stock companies. Special federal laws also apply to certain organizational and legal forms of business in the Russian Federation. Reorganization always only transforms a legal entity in a certain way, but does not terminate its activities, and the mere fact of reorganization, as well as a change in jurisdiction, does not entail the termination of employment contracts with employees, although reorganization in some cases inevitably entails, for example, a reduction in personnel or staff of workers. 1 -1

In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.

The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

If there is no specified work or the employee refuses the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.

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

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

Cancellation of a part-time working day (shift) and (or) part-time working week earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

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

Comments to Art. 74 Labor Code of the Russian Federation

1. The employer has the right to unilaterally change the terms of the employment contract if there is a combination of the following conditions: 1) there have been changes in organizational or technological working conditions, i.e. changes have been made to equipment and production technology, etc.; 2) in this regard, the previous terms of the employment contract cannot be preserved; 3) changes in the terms of the employment contract do not affect: profession, specialty, position, qualification, specific type of assigned work; 4) the employee is notified by the employer in writing no later than 2 months in advance. about the upcoming change in the terms of the employment contract; 5) the employee is given the reasons for changing the terms of the employment contract; 6) changes in the terms of the employment contract do not worsen the employee’s position in comparison with the collective agreement or agreements.

2. If the employee does not agree to change the terms of the employment contract, the employer is obliged to offer him another vacant job in writing. If the employee agrees to perform another job, then appropriate changes to the conditions are made to his employment contract by agreement of the parties.

3. The employer is obliged to offer vacancies in other locations if this is provided for by the collective agreement, agreements, or employment contract.

4. In the absence of the specified work or the employee refuses the offered work, the employment contract is terminated in accordance with clause 7, part 1, art. 77 TK.

5. When introducing a part-time working day (shift) and (or) part-time working week, as well as when production is suspended, the employer is obliged to notify the employment service authorities in writing about this within 3 working days after the decision is made to carry out the relevant measures (Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”).

Changing an employment contract is a rather complex undertaking that one has to deal with relatively often. It is controlled by various labor law norms, so the terms of the contract can only be changed if you follow a certain legally established procedure. To know what you need to be prepared for if you receive a notification about a change in the conditions of the working city, as well as in what order this aspect of work activity is carried out, you need to understand each stage of this process in order.

Changing the employment contract and the basis for it

Changing the terms of an employment contract implies making amendments to already existing and properly formalized legal relations. Such a process is possible and established by law - this is discussed in Chapter. 12 Labor Code of the Russian Federation. There are also four main types of changes in the terms of the contract:

• Transfer to another position or another structural unit;
• Changing the terms of the employment contract determined by the parties;
• The enterprise undergoes structural organizational changes, such as changing the person who has the right of ownership of the organization's property;
• The head of the company decided that one of the employees should be suspended from work.

In case of dismissal of an employee, changes are not made directly to the text of the employment contract and are not drawn up.

Changing the terms of an employment contract by agreement of the parties

Usually, in order to make changes to the terms of an employment contract, it is necessary to obtain the consent of both parties who signed this document. But in some individual cases, changing the terms of the employment contract at the initiative of the employer is also possible. He can independently change the conditions if the equipment used at the enterprise has changed, a new technology has been introduced, or a structural reorganization occurs in production. The only thing that the employer cannot change in this case is what functions the employee performs in his position.

When there is a need to change the conditions specified in the employment contract, the head of the enterprise is obliged to notify the employee about this in writing. Such a notice has a minimum period of two months before the changes specified in it take effect.

In Art. 306 of the Labor Code of the Russian Federation states that if the terms of the contract are changed by an individual, then this period is different. They are required to notify their employees in writing of upcoming changes two weeks in advance. These notices must include not only a notice that conditions have changed, but also why they have changed. Any change that is going to be made to the terms of the employment contract must have a good reason.

Sometimes an employee, having become familiar with the new conditions, may refuse to work after their implementation. In this case, the head of the enterprise must offer the person another position in writing. This can be either a vacant job or a position that will correspond to the employee’s qualifications. The employer can also offer a position that is lower in the hierarchy of the organization or is paid lower - the main thing is that it is free. And he is obliged to offer the employee all the vacant positions that he currently has. And if this is possible under the terms of a collective agreement or other similar agreement, then the head of the enterprise may give the employee the right to choose among vacancies that are located in another locality or structural unit.

But sometimes it happens that there is no agreement on this issue between the employee and the employer. Perhaps the head of the enterprise does not have any vacant positions, or the ones that exist are not suitable for the employee. In this case, as stated in clause 7, part 1, article 77 of the Labor Code of the Russian Federation, the employment contract is terminated, and the employee is paid his mandatory dismissal benefits.

What does the process of changing an employment contract look like at the initiative of the employer?

In order to change the essential terms of an employment contract at the initiative of the employer, he must have sufficiently compelling reasons for this. The head of the enterprise can change the work contract in two cases - the entire company, or one of its branches, has undergone serious changes in the structure itself, or if there have been noticeable changes in the technical production process. And even in this case, the employer cannot change the worker’s job function.

Organizational type changes mean the following changes:

• One or more structural divisions of the organization were separated, or, conversely, merged.
• The company has liquidated one of its branches or representative offices.

Changes in technical working conditions most often include changes that affect equipment or the production technology itself. Both of these factors are often updated, some new units are introduced that require appropriate training, or the way goods are produced changes.

The legislation has a separate procedure that allows for such changes. It is conditionally divided into several stages.

1. The first stage is when the head of the enterprise determines which employees will be affected by the technical or organizational changes introduced in production. At the same stage, he analyzes the text of the employment contract itself and determines which parts need to be changed.
2. The second stage - the decision to change has been made and the head of the enterprise begins to notify employees in writing that it will soon come into force.
3. If the employee does not give his consent to work in new, changed conditions, then the third stage appears in the procedure. The employer begins to offer the employee available vacancies.
4. And the last, fourth stage is changing and terminating the contract. The employee still hasn’t found a position that suits him, and he doesn’t want to work under the new conditions. This means that the employer, taking advantage of the conditions prescribed in clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, terminates the contract and pays dismissal benefits.

Changing the employment contract at the initiative of the employee

The employee can also be the person initiating changes to the employment contract. In particular, he has the right to write a statement to the employer with a request to change any of the working conditions. This statement and possible changes may relate to any aspect of the employment relationship, in particular:

• Remuneration systems and salary amounts, tariff rates or coefficients.
• Working hours and work schedule.
• Labor regime.
• Places where work duties are performed.
• Direct work responsibilities and production standards.

At the same time, making such changes unilaterally is unacceptable. That is, the employee must in any case obtain the consent of the employer and then draw up a bilateral additional agreement to the employment contract.

The only situation when the employer is obliged to satisfy an employee’s application to change the employment contract at the employee’s initiative is the situation when such an application is sent by a pregnant employee. In particular, he does not have the right to refuse to establish a shortened working day, but he can accordingly change the mechanisms for calculating wages in proportion to the time actually worked.

How does an employment contract change if the owner changes?

A person who has just received ownership of an organization's property has the opportunity to terminate work contracts with some employees. This is, first of all, the production manager. The chief accountant is also subject to this right. The legislation allows three months for this procedure. The period begins to count from the moment the new owner acquires ownership rights to the organization’s property. These categories of workers, like any other, need to be paid compensation. Its size is established in clause 4, part 1, art. 81 of the Labor Code of the Russian Federation and it says that severance pay should be equal to at least three average salaries.

A person who has acquired ownership of an organization can only fire those people listed above. No other employees of the business may be dismissed for this reason. But if they refuse to continue their work because the organization has changed its owner, then such workers can be fired in full accordance with paragraph 6 of Art. 77 Labor Code of the Russian Federation.

Also, the new owner may decide to carry out a procedure such as reducing the workforce. But he will be able to do this only after state registration of the transfer of ownership takes place.

Other common cases of organizational changes that may affect the terms of an employment contract are a change in subordination or reorganization, merger or transformation of an organization. This cannot be a sufficient reason to terminate an employment contract with one of the workers in a production facility that is undergoing organizational changes.

The legislation does not stipulate the exact period during which an employee can refuse to work under changed working conditions to the new manager. This means that, in principle, the employee can submit this refusal at any time. But usually they use a similar period given above - 3 months from the day the changes came into force.

Suspension from work

There are certain conditions under which the head of an organization is obliged to remove an employee from work. This list includes the following cases:

In all of the above cases, the head of the organization has every right, and even the obligation, to remove the employee from work. The period of such suspension must be equal to the period required to eliminate the difficulty interfering with the employee’s work activity. And while the employee is suspended, he naturally does not receive wages, unless the suspension is the direct fault of the employer.

An employee can be suspended from work for a longer period than two months. This can be done if an employee refuses to move to a new workplace or work under the changed terms of the employment contract. In this case, the employer can either fire him using clause 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, or agree on a temporary suspension. The duration of such debarment may be as long as the parties to the conflict of interest can agree upon. Typically, such removal from office lasts no more than four months.

It is worth remembering that an employee who has been suspended from work has every right to go to court. In this case, he has the opportunity to prove that the manager’s actions were illegal and constitute a violation of his labor rights. If he proves that the head of the enterprise suspended him from work without good reason, or if the order established by law was violated, then the person responsible for this will be found guilty. And given that for the entire time the employee was suspended from work, he was not paid wages, the employer will be forced to pay everything that he did not receive.

Also, in addition to paying lost wages, the head of the organization and his closest assistants may be recognized as administrative violators. And the most common reason why an employer can be found guilty of illegal dismissal is that the boss used a reason for this that is not on the official list established by law. Often, among the mistakes made by employers in relation to removal, there is a violation of the procedure.

Procedure for changing the terms of an employment contract

Any employment contract has conditions that, in the vast majority of cases, do not change. If we bring these conditions to a general form, we get the following:

• The location of the enterprise where the employee will work. In the same column, the employer must specify the name of that structural unit.
• Functions that the employee will perform in the position. Typically, a position has a large set of responsibilities - this helps relieve the employee of unnecessary work. And, in particular, from unfounded claims on the part of the manager.
• The date when the employee began or will begin working. This is a very important point, because it is from this moment that the employee’s salary begins to be credited.
• Conditions of labor payments. This paragraph indicates by what system the employee will be paid wages and basic salary.
• If a fixed-term contract is concluded between an employee and an employer, then its validity period must also be indicated.

The remaining terms of the employment contract may change during the course of work.

There are two main ways by which you can change the terms of an employment contract.

• If the agreement of all parties entering into the contract is reached.
• On an initiative that comes from the employer.

If the terms of the employment contract are changed through an initiative coming from both parties, then the procedure clearly established in law must be followed.

• First, the parties who have reached an agreement must draw up and enter into an additional agreement to the contract. It will act as an addition to an existing document, which means there is no need to conclude a new one.
• It is necessary to draw up the document in two copies - both for the employee and for the employer, in accordance with Art. 61 Labor Code of the Russian Federation.
• Using a concluded and executed additional document, the employer must sign an order stating which aspects of the existing contract have been changed and how.

Even if the employee agrees with the changes proposed to him, but there are no signatures on the additional document and the order has not been issued, then the employee should not begin work under the new conditions.

It was written above about how the terms of the contract are changed at the initiative of the employer. The employer issues a corresponding order for the enterprise and sends a notification to everyone affected by these changes. Then the employer receives written consent or a written refusal, and in case of consent, an additional agreement to the contract is drawn up and an order is issued.

When the agreement of the parties is reached, all steps are taken and the terms of the employment contract are changed, the process still does not end. The fact is that such a change will affect not only the employee’s work activity, but also other regulations, such as:

• Collective agreement;
• Rules governing the internal regulations of the enterprise;
• Provisions regarding payroll, bonuses and incentives.

After changes have been made to the contract and all documents have been signed, the head of the enterprise must necessarily familiarize the employee with the updates that have been made to these papers.

The written notice that will be sent to employees affected by changes to the employment contract looks like this:

• The general essence of the changes being carried out;
• How will the existing order of the employee’s work change;
• A clear indication of which points of the document will be changed.

Also, the head of the enterprise needs to draw up an official order stating that the changes are taking place and will soon come into force. Such a document should contain information such as:

• The reasons that forced the boss to make changes to the existing document;
• An order stating that all changes made to the contract must be reflected in local regulations;
• The date when all changes take effect.