Part two of Article 74 of the Labor Code of the Russian Federation. Changes in essential working conditions. What can be changed and under what conditions

RULES FOR TRANSFER OF AN EMPLOYEE TO ANOTHER JOB DUE TO CHANGES IN WORK CONDITIONS

Correction of established at the conclusion employment contract the conditions of the relationship between the employee and the employer is a matter of time: changes in the economy and technology, in law and social sphere inevitably affect labor relations. In order to comply with their interests and achieve certain goals in the new circumstances, the employer is forced to change the terms of employment contracts agreed with employees.
The legislator also recognized the right to revise the terms of an employment contract as a reaction to a serious change in the external (social, economic, legal) or internal (resource-technological) environment during the operation of the Labor Code of the Russian Federation. modern conditions of the formation of the market, the recognition of the employer's right to decide on changing the terms of the employment contract determined by the parties during the negotiations is objectively necessary to ensure the continuity of the employer's activities and its development.
However, in order to prevent unjustified infringement labor rights employees and in order to avoid abuse by the employer of the right granted to him, the legislator put forward a number of conditions in the Labor Code of the Russian Federation, which, in without fail must be followed by the employer. Let's consider them in detail.

The procedure for changing the terms of employment contracts

According to the first part of Article 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization production, other reasons), determined by the parties the terms of the employment contract cannot be saved, they can be changed at the initiative of the employer, with the exception of changing labor function worker.
Updated in accordance with Federal Law No. 90-FZ of June 30, 2006 "On Amendments to the Labor Code Russian Federation, recognizing as invalid on the territory of the Russian Federation some regulatory legal acts of the USSR and invalidated some legislative acts (provisions of legislative acts) of the Russian Federation "the regulatory provision that determines the conditions for the transfer at the initiative of the employer, thanks to examples of organizational or technological changes in working conditions, of course, will reduce disputes regarding whether the planned changes are sufficient grounds for changing the terms of the employment contract, but will not completely exclude them: we believe that, as before, employees, government inspectors labor and judges will evaluate the employer's decisions to adjust labor relations, since technological changes are not limited to changes in technology and production technology, but organizational structural reorganization of production.
The Plenum of the Supreme Court of the Russian Federation in its Decree of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" supplements the examples of changes in organizational and technological working conditions given in the first part of Article 74 of the Labor Code of the Russian Federation with such a change as improving jobs based on their certifications.
In our opinion, the list of technological changes can be supplemented by such changes as the reconstruction of production, the introduction of new production (technological) equipment, the introduction of new technological processes, changing the rules for operating equipment, etc. In particular, organizational changes can be considered such changes as the introduction of new work modes (for example, multi-shift work), changes in the wage system, labor rationing systems, redistribution of tasks and areas of responsibility between structural divisions, etc.

The fundamental difference between the previous version of the first part of Article 73 and the current version of the first part of Article 74 of the Labor Code of the Russian Federation, which regulate labor relations in case of organizational or technological changes in working conditions, and the versions of paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation is that since October 2006 year, the employer can change any condition of the employment contract determined by the parties, regardless of its significance for the parties, that is, without regard to "materiality". Thus, under the current legal regulation, it does not matter which condition is changed - mandatory (by virtue of part two of Article 57 of the Labor Code of the Russian Federation) or additional (by virtue of part four of Article 57 of the Labor Code of the Russian Federation), key or secondary. The only condition that the employer cannot change, referring to organizational or technological changes, is the labor function. Recall that in accordance with part two of Article 57 of the Labor Code of the Russian Federation, a labor function is understood as work in a position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee. Thus, no matter what changes in the organizational or technological plan the employer plans, the names of positions, professions, specialties and the corresponding labor duties should remain unchanged.
The rest of the terms of the employment contract, determined by the parties, can be changed. The terms of an employment contract, which in practice are most often affected by organizational or technological restructuring, include:
1) a condition on the place of work (usually its change is expressed in a change in the structural unit in which the employee performs work). Moreover, in the context of the creation by the legislator of conditions for internal labor migration(due to the prohibition of establishing direct or indirect advantages when concluding an employment contract depending on the place of residence (including the presence or absence of registration at the place of residence or stay)), we believe that employers and employees will increasingly come to an agreement on changing the location of their work (for example, by transferring from one separate structural unit located in one locality (taking into account the administrative-territorial division) to another located in another locality). However, the most common is still a change in the place of work, defined by a non-separated (functional) structural unit(shops, departments, etc.);
2) conditions of remuneration (mainly the size of the tariff rate or salary ( official salary) employee, types and amounts of additional payments, allowances and incentive payments);
3) the mode of working time and rest time (if it is for this employee was installed specifically due to the fact that it differs from general rules operating at this employer);
4) in addition to the compensation established by law for hard work and work with harmful and (or) hazardous conditions labor, if the employee is hired under appropriate conditions;
5) conditions determining in necessary cases nature of work (mobile, traveling, on the road, other nature of work).
With the new legal regulation, it should also be assumed that the employer, guided by parts one and three of Article 74 of the Labor Code of the Russian Federation, may have an interest in changing the condition on the duration of the employment contract (both upward (that is, extension) and downward ( i.e. reductions, but within the overall period).
In principle, organizational or technological conditions may lead to a change in the so-called additional conditions of the employment contract. For example:
1) conditions on non-disclosure of secrets protected by law - state, official, commercial and other (in particular, due to the termination of the performance by the employer of work related to secrets protected by law);
2) conditions on the obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer (in particular, in the case when the employer, due to organizational (financial) changes, stops paying for employee training);
3) conditions on the types and procedure for additional employee insurance (in particular, as a result of the revision of insurance programs as a result of changes in the wage system and social package);
4) on the improvement of the social and living conditions of the employee and his family members (mostly they change for the above reasons in connection with the revision of wage systems and the corporate social package as a whole).
Such conditions of an employment contract as a condition on a mandatory social insurance of the employee, on the types and amounts of compensation for hard work and work with harmful and (or) dangerous working conditions (if the employee performs his job function in the specified conditions), since they are derivatives, are established in accordance with the Labor Code of the Russian Federation, other federal laws and regulatory legal acts. Recall that, by virtue of part two of Article 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees compared to those established labor law and other normative legal acts containing labor law norms; if such conditions are included in the employment contract, they are not subject to application.
In this aspect, we consider it necessary to emphasize that in practice, employers most often forget about the requirement formulated by the legislator in part eight of article 74 of the Labor Code of the Russian Federation (in the previous version of the Code in part eight of its article 73), namely that changes determined by the parties terms of an employment contract introduced in connection with a change in organizational or technological working conditions should not worsen the position of the employee in comparison with the established collective agreement, agreements. If the need for organizational or technological changes is essential and unavoidable, and such changes cannot be made without worsening the terms of employment contracts in comparison with those established by the collective agreement, then the employer must first amend the collective agreement and only then proceed with the procedures provided for in Article 74 of the Labor Code. Code of the Russian Federation

In the event that the changes planned by the employer lead to a deterioration in the position of the employee compared to the established agreement, the employer cannot influence the situation at all, unless he takes actions as a result of which the effect of the relevant agreement will not apply to him.
Since employees are demonstrating increasing legal preparedness in protecting their labor rights, we consider it necessary to draw the attention of employers to actions to amend employment contracts under the terms of the relevant agreement.
Still a significant part of employers believes that those documents in the field of work that they have not signed do not apply to them and are not binding. This is a misconception that can cause the employer to be held liable and disputes with employees.
According to parts three and four of Article 48 of the Labor Code of the Russian Federation, an agreement (that is, in accordance with part one of Article 45 of the Code, a legal act regulating social and labor relations and establishing general principles regulation of related economic relations, concluded between the authorized representatives of employees and employers at the federal, interregional, regional, sectoral (intersectoral) and territorial levels social partnership within their competence) applies to:
1) all employers who are members of the association of employers that has concluded the agreement. Termination of membership in an association of employers does not release the employer from the performance of the agreement concluded during the period of his membership. An employer who has joined an association of employers during the term of the agreement is obliged to fulfill the obligations stipulated by this agreement;
2) employers who are not members of the association of employers that has concluded the agreement, who have authorized the said association on their behalf to participate in collective negotiations and conclude an agreement or have joined the agreement after its conclusion;
3) bodies of state power and bodies of local self-government within the limits of their obligations.
For federal employers public institutions, state institutions of the constituent entities of the Russian Federation, municipal institutions and other organizations financed from the relevant budgets, the agreement is also valid if it is concluded on their behalf by the relevant public authority or local government.
By virtue of part seven of Article 48 of the Labor Code of the Russian Federation, at the proposal of the parties to the industry agreement concluded at the federal level, the head of the federal body executive power who performs the functions of developing state policy and legal regulation in the field of labor (in the current legal situation, this is the Minister of Health and social development RF), has the right, after the publication of the agreement, to invite employers who did not participate in the conclusion of this agreement to join this agreement. This proposal is subject to official publication in " Russian newspaper"(in accordance with the Procedure for publishing sectoral agreements concluded at the federal level and proposals for joining the agreement, approved by Order of the Ministry of Health and Social Development of Russia dated April 12, 2007 N 260) and must contain information about the registration of the agreement and the source of its publication ( official source publication of the agreement is the journal "Labor and Insurance"; in addition, the text of the agreement must be posted on the official website of the Ministry of Health and Social Development of Russia ( www.mzsrrf.ru ). If employers operating in the relevant industry, within 30 calendar days from the date of official publication of proposals for accession to the agreement have not been submitted to federal agency executive power, performing the functions of developing state policy and legal regulation in the field of labor, a motivated written refusal to join it, then in accordance with part eight of Article 48 of the Labor Code of the Russian Federation, the agreement is considered to be extended to these employers from the date of the official publication of the offer. Thus, only in the event that the employer takes actions to “withdraw” himself from the effect of the relevant agreement, he can consider that neither he nor his employees are subject to the obligations assigned to employers by the said agreement. At the same time, these actions must be very active and resolute. In particular, by virtue of the norm under consideration, to a written refusal sent to the Ministry of Health and Social Development of Russia, the employer must attach the protocol of his consultations with the elected body of the primary trade union organization uniting the employees of this employer. However, directions specified documents may not be sufficient to achieve non-extension of the relevant agreement. Part nine of Article 48 of the Labor Code of the Russian Federation provides that in the event of an employer's refusal to join the agreement, the Minister of Health and Social Development of the Russian Federation has the right to invite representatives of this employer and representatives of the elected body of the primary trade union organization uniting employees of this employer to hold consultations with the participation of representatives of the parties to the agreement ; at the same time, representatives of the employer, representatives of employees and representatives of the parties to the agreement are obliged to take part in these consultations under the threat of administrative liability in accordance with Articles 5.28 and 5.30 of the Code of Administrative Offenses of the Russian Federation.

Finally, one more point should be noted: by virtue of parts five and six of Article 48 of the Labor Code of the Russian Federation, the agreement applies to all employees who have labor relations with employers who are covered by this agreement; in cases where several agreements are in effect for employees at the same time, the conditions of the agreements that are most favorable for employees are applied.
Thus, before the employer begins changes leading to a change in the terms of employment contracts in the manner prescribed by Article 74 of the Labor Code of the Russian Federation, he needs to establish whether the relevant agreement in the field of labor applies to him, and if it does, then compare its provisions with the planned changes in the terms of employment contracts. In the event of a deterioration in the situation of employees compared to this agreement, the employer should abandon the planned changes or adjust them so as to ensure compliance with part eight of Article 74 of the Labor Code of the Russian Federation
To confirm the seriousness of what has been said, we consider it necessary to draw the attention of employers to how significant the norm of part eight of article 74 of the Labor Code of the Russian Federation is: when considering a case on the reinstatement of persons whose employment contract was terminated under clause 7 of part one of Article 77 of the Code (refusal to continue work due to a change in the terms of the employment contract determined by the parties), or on the recognition of illegal change in the terms of the employment contract determined by the parties when the continuation by the employee of work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), take into account that, based on Article 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties:
a) 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;
b) did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement.
In the absence of such evidence, the termination of the employment contract under paragraph 7 of part one of Article 77 of the Code or the change in the terms of the employment contract determined by the parties in accordance with Article 74 of the Code, in accordance with the clarification of the Plenum of the Supreme Court of the Russian Federation, cannot be recognized as legal.
In practice, the next condition checked by the courts (in addition to those listed in points "a" and "b") is the fulfillment by the employer of the obligation to notify writing employees whose employment contracts are planned to be reviewed, about upcoming changes in the terms of employment contracts determined by the parties. In accordance with the second part of Article 74 of the Labor Code of the Russian Federation, the employer is obliged to notify the employee in writing no later than 2 months in advance, unless otherwise provided by this Code .

The terms for notifying an employee are determined according to the rules set forth in Article 14 of the Labor Code of the Russian Federation, according to which:
a) the period with which this Code associates the emergence of labor rights and obligations begins from the calendar date on which the beginning of the emergence of these rights and obligations is determined;
b) terms calculated in months expire on the corresponding day of the last month of the term;
c) the period calculated in calendar days includes non-working days;
d) if the last day of the term falls on a non-working day, then the day of expiry of the term shall be considered the next working day following it.
Analyzing the content of the second part of Article 74 of the Labor Code of the Russian Federation, it is necessary to draw the attention of employers to the novel: if, in accordance with the previous version of Article 73 of the Labor Code of the Russian Federation, the employer was obliged to inform the employee only about upcoming changes in the terms of the employment contract, then in accordance with the norms of Article 74 of the Code, set out in new edition, now he is also obliged to bring to the attention of the employee the reasons that necessitated changes in the terms of employment contracts.
Since the content of such a notice is not established at the regulatory level, the employer determines it independently. With that said, the notice form should include the following:
a) about the reasons that caused the need to change the terms of a specific employment contract;
b) on the terms of the employment contract, which are subject to change, and the content of these changes;
c) on the date of introduction of the planned changes in the terms of the employment contract;
d) the period during which the employee must decide to continue labor activity under new conditions or its termination.
Based on practice, we also recommend that employers include in the notification a provision requiring the employee to express his decision in writing regarding the upcoming changes (in this case, it is advisable to tell the employee that such a decision can be stated by him directly in the notification (if the form provides for a place for the employee to express his will) or in a separate document (for example, in an application)). Quite convenient are notification forms consisting of several separable parts, one of which is intended for the employee to express his decision.
AT small organizations notifications to employees are signed directly by the head of the organization. In organizations in which personnel services have been formed, or with a staff of more than 100 people, these functions are delegated by order (instruction) of the head of the organization to the deputy head of the organization for personnel or the head of the personnel service (personnel manager).
It should be noted that, unlike other changes in the terms of employment contracts, for example, caused by a reduction in staff or the number of employees, the legislator did not require employees to be notified of upcoming changes in the terms of employment contracts in the manner prescribed by Article 74 of the Labor Code of the Russian Federation, against signature (as it is, for example, done in the second part of article 180 of the Labor Code of the Russian Federation). At first glance, this simplifies the work of the personnel service, since it is not required to receive written confirmation of the fact that the notification has been sent to the employee. However, as practice shows, the absence of an employee’s signature confirming the fact that he was given a notice of upcoming changes in the terms of the employment contract, in the event of disputes regarding the legality of dismissal under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation, is interpreted in favor of the employee.
In order to avoid misunderstandings and disputes with employees, the notice must be drawn up in two copies, one of which must be issued to the employee against signature, the second to remain in the personnel department. In the event that, in accordance with the notification form, the employee must express his decision directly in the notification (in a specially designated place), the copy issued to the employee must be returned to the personnel department.
If the office work system in the organization provides that the employee’s decision about upcoming changes should be expressed in a separate document, it is advisable for the personnel department to develop a template (unified) application form or draw up exemplary sample, which the employee will be guided by when drawing up his application. At the same time, it is highly desirable that from the employee’s application it would be possible to establish with what changes in the terms of the employment contract the employee agreed or disagreed.
If the employee refuses to put down his signature in the notice of upcoming changes, the personnel service should draw up an appropriate act.
If the employee agrees to continue working under the new conditions, the parties must sign an agreement to amend the employment contract. Based on it personnel service prepares an order (instruction) to change the terms of the employment contract determined by the parties.
If the employee refuses to continue working in the new conditions, the employer, guided by part three of Article 74 of the Labor Code of the Russian Federation, is obliged in writing to offer him another job available to the employer (as vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower paying job), which the employee can perform taking into account his state of health. 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.
Due to the fact that the procedure for offering an employee another job is not regulated in time, in practice there are difficulties in determining the number of offers and the terms during which an employee can be offered a transfer to another job. We believe that the employer can try to manage these terms by setting the time for the employee to express his decision regarding both the new working conditions and the proposed job. The employer can also put forward a transfer proposal at the same time as the notification, that is, without waiting for the employee's decision regarding the upcoming changes.
The employer can also be passive: having notified the employee about the upcoming changes, he can wait for the employee’s decision until the end of the allotted time and, only if the employee refuses to continue working in the new conditions, make him an offer for a new job.
In most organizations, an offer to an employee of another job is issued in the form separate document. Such a document contains the name of the position (profession, specialty) that is offered to the employee, lists the main of the new terms of the employment contract and indicates the period during which the employee must express his attitude to the transfer. If the employer can offer the employee several positions (professions, specialties), then they are indicated in the proposal with a note that the right to choose a position (profession, specialty) is granted to the employee.
If the personnel department is ready to offer the employee a transfer to another job at the time the decision is made to change the terms of the employment contract, then the list of positions or professions offered to the employee can be given directly in the notification of upcoming changes. However, including in the text of the notice on the introduction of changes in working conditions a notice of the absence of vacancies and an offer new job, you need to remember that the situation may change, and by the expiration of the notice period for upcoming changes in the organization, vacancies or places may appear and the existing ones be filled.
If the employee refuses to continue working due to a change in the terms of the employment contract determined by the parties in the manner set forth in part four of Article 74 of the Labor Code of the Russian Federation (including transfer to another job), the employer has the right to terminate the employment contract under clause 7 of part one Article 77 of the Labor Code of the Russian Federation It should be noted that part four of Article 74 of the Code and paragraph 7 of part one of Article 77 of the Code do not coincide: the first rule provides that the employment contract is terminated in the absence of a job, transfer to which could be offered to the employee, or in the event that the employee refuses to the proposed work, and the second, that the employment contract is terminated in the event of the employee's refusal to continue work due to a change in the terms of the employment contract determined by the parties. However, it does not change the essence of the change in legal relations, since part four of Article 74 of the Labor Code of the Russian Federation names the consequences of the real reason for the change in labor relations, the employee’s disagreement to work in the new conditions.
Upon dismissal due to the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7 of part one of article 77 of the Labor Code of the Russian Federation), he is paid in accordance with part three of article 178 of the Labor Code of the Russian Federation severance pay in the amount of 2-week average earnings.
If the employee agrees to the transfer, the personnel department prepares drafts of an additional agreement to the employment contract, which reflects the changes agreed by the parties, as well as an order (instruction) on the transfer to another job according to unified form N T-5, approved by the Decree of the Goskomstat of Russia dated 05.01.2004 N 1. After the parties sign the agreement, the head of the organization or other authorized person signs the named order (instruction), on the basis of which work book the employee makes a corresponding entry.

D.L. SCHUR, L.V. SHCHUR-TRUKHANOVYCH

Shchur D.L., head of the legal department of the publishing and consulting center "Delo i Servis".

Shchur-Trukhanovich L.V., specialist in labor law and labor economics, Ph.D.

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 may 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 in writing to offer him 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 paragraph 7 of the first part of Article 77 of 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 established by Article 372 of this Code, to adopt 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 of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

The 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.

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 the organizational or technological working conditions, i.e. changes have been made to the technique and technology of production, etc.; 2) in connection with this, the previous terms of the employment contract cannot be retained; 3) changes in the terms of the employment contract do not apply to: profession, specialty, position, qualification, specific type of assigned work; 4) the employee is notified by the employer in writing no later than 2 months. about the forthcoming change in the terms of the employment contract; 5) the reasons for changing the terms of the employment contract are given to the employee; 6) changes in the terms of the employment contract do not worsen the position of the employee in comparison with the collective agreement, 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 other work, then appropriate changes in the conditions are made to his employment contract by agreement of the parties.

3. The employer is obliged to offer vacancies in other areas, if it is provided for by the collective agreement, agreements, labor contract.

4. 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 paragraph 7 of part 1 of Art. 77 TK.

5. When introducing a part-time (shift) and (or) part-time working week regime, as well as during the suspension of production, the employer is obliged to notify the employment service authorities of this in writing within 3 working days after the decision 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").

Labor Code of the Russian Federation:

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

The employer is obliged to notify the employee in writing of the upcoming 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.

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Comments on Article 74 of the Labor Code of the Russian Federation, judicial practice of application

Clause 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" contains the following explanations:

Evidence of the legality of the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation must be submitted by the employer

When resolving cases on the reinstatement of persons at work, the employment contract with which was terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work due to a change in the terms of the employment contract determined by the parties), or on the recognition of illegal changes in the terms of the employment contract determined by the parties when the employee continues to work without changing the labor function (Article 74 of the Labor Code of the Russian Federation), it must be taken into account that, based on Article 56 of the Code of Civil Procedure of the Russian Federation, 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, termination of the employment contract under paragraph 7 of part 1 of Article 77 of the Labor Code of the Russian Federation or a change in the terms of the employment contract determined by the parties cannot be recognized as legal.

Lack of grounds for the introduction of a part-time work week

In paragraph 4 of the Legislative Review and judicial practice The Supreme Court of the Russian Federation for the second quarter of 2010 gives an example of an illegal issuance by an employer of an order establishing a part-time work week for employees with pay for the time actually worked, which led to a violation of labor rights. In particular, the following is stated.

The employee filed a claim against the organization for the recovery wages, monetary compensation for delayed payment of wages and compensation for moral damage caused by violation of labor rights, motivating the claims by the fact that CEO The organization issued an order establishing from November 20 to December 31, 2008 a part-time working week (three working days) with payment for the hours actually worked.

Recognizing given order unenforceable, the court stated as follows.

The court found that there were no grounds for introducing a part-time working week regime in the organization (the defendant), since there were no reasons specified in Part 1 of Art. 74 TK.

The employer did not pursue the goal of preserving jobs, since he had already issued an order on mass reduction staff of workers.

In addition, the employer violated the provisions of Art. 72 of the Labor Code that an agreement to change the terms of an employment contract determined by the parties is concluded in writing, the provisions of Part 2 of Art. 74 of the Labor Code, according to which the employer is obliged to notify the employee in writing of the upcoming changes determined by the parties to the terms of the employment contract, as well as the reasons that necessitated such changes, no later than two months in advance, unless otherwise provided by this Code, as well as the provisions of Art. 372 of the Labor Code, which regulates the procedure for taking into account the opinion of the elected body of the primary trade union organization when adopting local regulations.

These circumstances were not taken into account by the court of first and cassation instances, which, in violation of Part 4 of Art. 8 shopping malls were guided by local normative act not subject to application (review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2010; approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of September 15, 2010).

Position of the Constitutional Court of the Russian Federation

Parts 2, 3, 4 Art. 74 of the Labor Code of the Russian Federation on changing the terms of the employment contract by the employer and the possibility of dismissal do not contradict the Constitution

Parts two and three of Article 74 of the Labor Code of the Russian Federation provide for guarantees provided to an employee in connection with a unilateral change by the employer of the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions, namely: a minimum two-month period is set (unless another period is provided for by this Code) the term for notifying the employee of upcoming changes and the reasons that caused them (part two); the obligation of the employer, in case the employee does not agree to work in the new conditions, is fixed, to offer him in writing another available job that the employee can perform taking into account the state of his health (part three).

Such legal regulation is intended to ensure the employee the opportunity to continue working for the same employer or to provide him with time sufficient to make a decision to refuse to continue working and look for a new job, and cannot be considered as violating the constitutional rights of the applicant.

Part four of Article 74 of the Labor Code of the Russian Federation, which provides that if the employer does not have a relevant job or if the employee refuses the offered job, the employment contract is terminated, as well as paragraph 7 of part one of Article 77 of this Code, which fixes the appropriate grounds for dismissal, are aimed at ensuring certainty legal status of the employee, take into account the impossibility of formally maintaining labor relations if the employee does not agree with the change in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions, and also cannot be regarded as violating the rights of employees. In addition, the legality of the dismissal of an employee under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation can be verified in court (Determination of the Constitutional Court of the Russian Federation of January 22, 2014 N 20-O)

Art. 74 Labor Code of the Russian Federationconsiders one of the cases when the employer has the right to single-handedly 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 of maintaining 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 execution may change job duties, work schedule or work schedule, and even the level of remuneration for work. Other adjustments are also 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 notification 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 at your place. similar position(Offering vacancies should be 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 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 weeks 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 termination labor 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.

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 of 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 established by this Code for the adoption of local regulations, to introduce 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 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

The provisions of Article 74 of the Labor Code of the Russian Federation are used in the following articles:

General grounds for termination of an employment contract
7) the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of the Labor Code of the Russian Federation);
Changing the terms of the employment contract determined by the parties by the employer
On changing the terms of the employment contract determined by the parties, the employer - individual notify the employee in writing at least 14 calendar days in advance. In this case, the employer is an individual who is individual entrepreneur, has the right to change the terms of the employment contract determined by the parties only if these conditions cannot be maintained for reasons related to changes in organizational or technological working conditions (part one of Article 74 of the Labor Code of the Russian Federation).