Labor Code of the Russian Federation, article 74. Changes in essential working conditions. The employee agrees to the changes, what documents to issue

In the case when, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization production, other reasons), conditions determined by the parties employment contract cannot be saved, they can be changed at the initiative of the employer, with the exception of changing labor function worker.

About upcoming changes certain parties of the terms of the employment contract, as well as the reasons that necessitated such changes, the employer is obliged to notify the employee in writing not later than two months, 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 (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that 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.

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 the first part of this article may entail mass layoff employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code for the adoption of local regulations, to 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 Russian Federation").

Full text of Art. 74 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 74 of the Labor Code of the Russian Federation.

In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they 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 regulatory acts, introduce a part-time (shift) and (or) part-time working week for up to six months.

Commentary on Article 74 of the Labor Code of the Russian Federation

1. The commented article introduces the concept of "changing organizational or technological working conditions". It is explained that the reasons that led to them include changes in equipment and production technology, structural reorganization of production, as well as other reasons.

In accordance with paragraph 21 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, changes in organizational or technological working conditions may be changes in equipment and production technology, the result of improving workplaces based on their certification, structural reorganization of production.

It should be noted that currently there is no certification of workplaces. Federal Law No. 426-FZ of December 28, 2013 provides for special assessment working conditions.

Technology includes machines, mechanisms, automated systems production management, etc. The technical equipment of the enterprise may change due to the need to improve it due to wear and tear, obsolescence of equipment and other factors.

Technology affects the organization of production. This is a set of techniques and methods for obtaining, processing or processing raw materials, materials, semi-finished products or products carried out in various industries, in construction, etc. Technology is also called the description production processes, instructions for their implementation, technological rules, requirements, maps, graphs and more. Accordingly, technology is also subject to change.

For example, an increase in the requirements for the quality of products manufactured by an enterprise may necessitate changes in the labor functions of certain employees.

In turn, the structural reorganization of production may be associated with a merger, accession, division, transformation, separation of the employer - legal entity or with a reduction in the number and (or) staff of employees, etc.

These reasons, therefore, entail a change in the organizational or technological working conditions, under which the terms of the employment contract determined by the parties cannot be saved.

For example, an employer has purchased modern equipment. Due to the introduction of such equipment, the workload of the employee has decreased, which, accordingly, should affect his wages. The employer may, on his own initiative, change the terms of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, however, he must have evidence that the reduction wages worker is associated precisely with changes in organizational and technological working conditions.

So, according to the definition of Ryazan regional court dated February 22, 2012 N 33-271, the court found that the company was reorganized, which entailed staff changes: the number of employees of one branch of Sberbank of Russia was reduced, and at the same time the number of employees of another branch of Sberbank was increased with the transfer of a number of functions to the latter. These circumstances testify to the implementation of a number of measures to reduce the number of employees (changes in organizational conditions).

However, the court took the side of the employee, since the defendant-employer did not provide indisputable evidence testifying to ongoing changes in organizational or technological working conditions, in equipment and production technology, or structural reorganization of production.

It should be noted that disputes related to the application of the commented article turn out to be quite frequent in practice.

In another case at the enterprise in connection with the need to use a specialized software was adopted new edition job description specifying the relevant labor duties of the employee. The court considered that in this case there had been a change in the technological working conditions associated with the need to use a computer program in the work (see the ruling of the Moscow Regional Court of September 21, 2010 in case No. 33-18182).

It is of interest that the difficult financial situation of the employer due to the global financial and economic crisis does not apply to changes in organizational or technological working conditions (see the ruling of the Moscow Regional Court of September 14, 2010 in case N 33-17729).

At the same time, for example, in another case, the question of the reasons that led to the need to change the terms of the employment contract determined by the parties was the subject of a thorough examination of the court. From the documents submitted by the defendant-employer, it followed that in 2011 the defendant's uncovered loss amounted to more than 100 million rubles, which confirmed the defendant's arguments about the deterioration financial condition enterprises.

Of the sale and purchase agreements submitted by the defendant Vehicle it followed that most of the vehicles, the control of which was carried out by the plaintiff, were sold by the defendant, which led to measures in accordance with Art. 74 of the Labor Code of the Russian Federation. The court concluded that the defendant had grounds for changing the terms of the employment contract with the plaintiff in terms of reducing wages due to changes in organizational or technological working conditions (see the appeal ruling of the Moscow City Court of August 30, 2012 in case N 11-19166 /12).

Thus, the court's conclusion was based on circumstances directly related to the employer.

The assessment by the court of changes in organizational or technological working conditions should be influenced by the totality of circumstances that took place at the enterprise.

In general, the courts carefully analyze the changes that have taken place in the employer's organization and, on the basis of this, make a conclusion about their qualification as changes in the organizational or technological working conditions. However, it should be recognized that the concept of "organizational or technological conditions" itself is not very informative.

2. Based on the meaning of the commented article, subject to established order at the initiative of the employer, both essential and additional terms of the employment contract with the employee can be changed.

However, even if there are changes in organizational or technological working conditions, a change in the labor function of an employee is not allowed. According to the labor function is work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee.

This restriction is quite justified, since allowing the employer to change the labor function of the employee at his own discretion would entail a violation of the human right to freely dispose of his abilities to work, to choose the type of activity and profession. Forced labor is prohibited (Article 37 of the Constitution of the Russian Federation). The principle of freedom of labor is fixed in paragraph 3 of Art. 8 of the International Covenant on Civil and Political Rights (adopted on December 16, 1966 by Resolution 2200 (201) at the 1496th plenary session of the UN General Assembly), paragraph 2 of Art. 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (signed in Rome on November 4, 1950).

Speaking about the impossibility of changing the labor function, one should point to the decision of the Presidium of the Armed Forces of the Russian Federation of June 8, 2011 N 12PV11. The Supreme Court of the Russian Federation considered the case when an employee was informed of the impossibility of maintaining the terms of an employment contract determined by the parties due to structural changes, and she was offered a different position with a decrease in wages. She refused the proposed position and was fired under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation. She applied to the court, believing that there had been a change in her labor function, which is not allowed under Art. 74 of the Labor Code of the Russian Federation, which makes dismissal illegal. The court found that the plaintiff was offered to continue to work in fact in the same specialty, with the performance of the same labor function. Therefore, the dismissal was recognized as legal.

Consequently, the commented article is about the impossibility of changing the labor function of an employee, while this concept is not equivalent to the concept of "position" and does not absorb it.

If the employer made a change in the labor function of the employee, then this is qualified by the labor legislator as a transfer under Art. 72.1 of the Labor Code of the Russian Federation, and not under Art. 74 of the Labor Code of the Russian Federation (see the ruling of the Sverdlovsk Regional Court of September 11, 2012 in case N 33-11279/2012).

3. 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, no later than two months in advance, unless otherwise provided by the Labor Code of the Russian Federation.

As an exception to this rule, Art. 306 of the Labor Code of the Russian Federation establishes the procedure for changing the terms of an employment contract determined by the parties in relation to an employment contract with an employer - an individual. In this case, about changing the terms of the employment contract determined by the parties, the employer - individual notify the employee in writing at least 14 calendar days.

At the same time, the employer - an individual who is an individual entrepreneur, also 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, in accordance with Part 1 of Art. 74 of the Labor Code of the Russian Federation.

In addition, according to Art. 344 of the Labor Code of the Russian Federation, if it is necessary to change the terms of an employment contract with a religious organization determined by the parties, such an organization is obliged to notify the employee in writing at least seven calendar days in advance. Conditions for compliance with Part 1 of Art. 74 of the Labor Code of the Russian Federation, related to evidence of changes in organizational or technological working conditions, is not here, which is obviously related to the specifics of the work of a religious organization.

In this case, as a rule, an appropriate order of the employer is issued on the upcoming changes, which each employee whose employment contract is subject to change must familiarize with on receipt, indicating the date. It is important that the deadline for making changes is associated with the expiration of two months individually for each employee. Notification of some employees, in connection, for example, with their absence from the enterprise due to temporary disability, vacation, etc. may take place later than others. Therefore, it is difficult to time the start of work in new conditions when changing employment contracts in relation to a large team to a specific date.

It is possible to send a corresponding notice to an absent employee by registered mail with acknowledgment of receipt.

The Labor Code of the Russian Federation does not prohibit the employer with the simultaneous occurrence of circumstances requiring a change in the organization essential conditions of an employment contract with employees and downsizing of specific individuals, initiate both procedures at once (this is indicated, in particular, in the appeal ruling of the Moscow City Court dated January 18, 2013 in case No. 11-1692).

The reduction in the number or staff in accordance with is the basis for termination of the employment contract at the initiative of the employer.

In this case, Art. 180 of the Labor Code of the Russian Federation provides that the employer is obliged to offer the employee another available job (vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation. About the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature also at least two months before the dismissal.

Thus, in this case, the procedure for notifying employees can be carried out simultaneously.

It should be noted that the notification of employees provided for by the commented article must be preceded by real, and not supposed, facts reflected in the employer's administrative document.

This conclusion follows from the definition of the RF Armed Forces of October 31, 2008 N 25-В08-9, which considered the case when the head of the Administration issued an order on the upcoming structural reorganization municipal institution without a specific time limit. The employer - a municipal institution warned its employees about the upcoming changes on the basis of this order. Subsequently, the head of the Administration issued a resolution approving the changes made to the charter of the municipal institution, already specifying its structural reorganization. The court pointed out that the calculation of the period for the employer to warn employees about the upcoming structural reorganization and, as a result, about changing the terms of the employment contract determined by the parties could not be made earlier than the date when the employer had legal grounds for such notification and for bringing the decision on the upcoming changes terms of employment contracts to their employees. In the case under consideration, such a date was the date of the decision by the head of the Administration to approve the changes made to the charter of the municipal institution, which was issued much later than the order on the upcoming changes, which did not contain an indication of their period. This means that only two months after the adoption of this decision by the Administration and, accordingly, the familiarization of employees by the employer, an order could be issued to carry out a structural reorganization of the institution. Therefore, the procedure for notifying about upcoming changes in certain conditions of the employment contract by the employer was violated.

4. As in other similar cases, if the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job available to him.

This can be either a vacant position, a job corresponding to the qualifications of the employee, or a vacant lower position, or underpaid job.

The only important thing is that the employee should be able to perform it, 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 only if this is provided for by the collective agreement, agreements or the employment contract itself.

In the absence of the specified work, as well as in the event of the employee's refusal of the proposed work, the employment contract is terminated (part 4 of the commented article).

It provides for such a basis for terminating an employment contract as the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (clause 4, part 1, article 74 of the Labor Code of the Russian Federation).

As indicated by the Constitutional Court of the Russian Federation, Part 4 of Art. 74 of the Labor Code of the Russian Federation, which stipulates that if the employer does not have an appropriate job or if the employee refuses the proposed work, the employment contract is terminated, in systemic connection with clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation is aimed at preventing situations when an employee, while formally maintaining labor Relations, cannot be involved in the performance of labor duties, takes into account the need to maintain a balance of interests between the employee and the employer, and therefore cannot be regarded as violating the rights of employees (determination of the Constitutional Court of the Russian Federation of May 11, 2012 N 694-O).

However, in cases of illegal transfer of an employee to another job (for example, an employee is transferred to another permanent job without his written consent), dismissal in violation of the rules provided for by Art. 74 of the Labor Code of the Russian Federation, and in other similar cases, it should be remembered that when the court recognizes the actions of the employer illegal worker must be restored to its original place of work.

5. If a change in organizational or technological working conditions may lead to a mass dismissal of workers (for example, a large amount of equipment has failed without the possibility of replacing or repairing it), the employer, in order to save jobs, has the right (but is not obliged) to taking into account the opinion of the elected body of the primary trade union organization, introduce a regime of part-time work (shift) and (or) part-time work week for up to six months.

In doing so, one should be guided by Art. 372 of the Labor Code of the Russian Federation. Initially, the employer is obliged to send a draft instruction on the introduction of a part-time (shift) and (or) part-time working week, as well as justification for it to the elected body of the primary trade union organization, representing the interests of all or most employees. This body, no later than five working days from the date of receipt of the project of the specified LNA, sends the employer a reasoned opinion on the project in writing, which may not contain agreement with such a project or contain proposals for its improvement.

In case of disagreement with such an opinion, the employer is obliged, within three days after receiving it, to conduct additional consultations with the elected body of the primary trade union organization of workers in order to reach a compromise solution and adopt an LNA, which, however, can be appealed by the elected body of the primary trade union organization to the relevant state labor inspectorate or to court.

If the regime of part-time work (shift) and (or) part-time work week has been properly introduced, but the employee refuses to continue working in the new mode, then the employment contract with him is terminated under paragraph 2 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - due to a reduction in the number or staff of employees of the organization, individual entrepreneur, with the provision of appropriate guarantees and compensations to the employee.

In the future, the cancellation of the part-time (shift) and (or) part-time working week regime can be carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization earlier than the period for which they were established.

The commented article also contains a rule that the employer should be guided by - changes carried out on his initiative by the terms of the employment contract determined by the parties should not worsen the position of the employee in comparison with the established collective agreement, agreements.

Another commentary on Art. 74 Labor Code of the Russian Federation

1. The commented article interprets one of the types of translations considered in Art. 72.1 of the Labor Code, - when the reason that led to the change in one or more conditions of the employment contract was changes in organizational or technological working conditions. At the same time, it is assumed that the labor function of the employee, defined in the employment contract, remains unchanged.

2. In the very general view technology is understood as a system of tools and machines, as well as the methods of their application and functioning. Consequently, a change in the technological conditions of labor is expressed in the introduction of new tools, machines, as well as in a change in the processes of their operation.

The organization of labor is a complex and multidimensional category. At least two aspects of the organization of labor can be distinguished: 1) since human labor as an object legal regulation is social in nature, it is carried out in interaction with other people; 2) social labor implies a monetary value, therefore, the organization of labor can be understood as the regulation of relations between people in the process of their joint labor activity, as well as the organization of wages.

Thus, the organization of labor involves the organization of the regime of work and rest of workers, their interaction in the labor process, the management of the labor process, its regulation, accounting, forms and systems of wages, etc. Accordingly, a change in organizational working conditions can be understood as a change in these and other similar factors, within which labor activity worker.

Technological and organizational changes may result in changes in the terms of the employment contract, while the employee's labor function remains the same. Since the basis for applying the rules established by the commented article are the specific circumstances defined by this article, in the event of a dispute, the employer must prove the existence of these circumstances, i.e. changes in organizational or technological working conditions. Otherwise, the actions of the employer aimed at changing the terms of the employment contract will be declared illegal.

In this regard, it must be taken into account that, based on Art. 56 of the Code of Civil Procedure, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code or a change in the terms of an employment contract determined by the parties cannot be recognized as legal (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 Labor Code Russian Federation").

3. It is assumed that the change in the terms of the employment contract, which occurs as a result of changes in organizational and technological working conditions, is carried out at the initiative of the employer, therefore the employer is obliged to notify the employee in writing no later than two months before their introduction (part 2 of article 73 TC).

The legislator does not specify the procedure for notifying an employee of a change in the terms of an employment contract. In practice, it may be recommended to issue an order (instruction) of the head of the organization or other competent person on the transition to new working conditions, with which the employee must be familiarized against receipt no later than the period specified in the law.

The employer - an individual is obliged to notify the employee in writing about the change in the essential terms of the employment contract at least 14 calendar days in advance (see article 306 of the Labor Code and commentary thereto).

An employer - a religious organization has the right to make changes to the content of an employment contract, subject to a written warning to the employee about this at least seven calendar days before their introduction (see Article 344 of the Labor Code and commentary thereto).

4. If the employee refuses to continue working in the new conditions, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such, any other work that the employee can perform taking into account his qualifications and condition health.

The legislator does not establish the time limits within which the employer must offer the employee another job in the organization, as well as the specific form in which such an offer can be made. As one of the options for solving the problem, it can be recommended, together with the order on the upcoming change in the essential terms of the employment contract, to present the employee with a list of all vacancies available in the organization as an annex to the order. The employee, having familiarized himself with the order and the list of works offered to him against receipt, can at the same time express his will by agreeing to be transferred to any job corresponding to his qualifications and state of health, or refusing such a transfer.

If the employee agreed with the transfer to another job available in the organization, such a transfer is formalized by an order (instruction) and an additional agreement to the employment contract indicating in it the new conditions that are included in the employment contract.

In the absence of the specified work or if the employee refuses to be transferred to another job, the employment contract with him is terminated in accordance with paragraph 7 of Art. 77 TK.

As follows from the commented article, the employer is obliged by law to offer the employee the vacancies 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 or labor contract. At the same time, the employer has the right to offer any vacancy to the released employees, regardless of its location.

5. A change in the organizational or technological working conditions may lead to a change in the terms of the employment contract not for one employee, but for the whole group.

One of the options for solving the problems arising in connection with this is formulated by the legislator in the commented article. If changes in organizational or technological working conditions may lead to mass dismissal of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time regime for up to six months.

The condition on the length of working time is one of the essential working conditions. Therefore, the introduction of part-time work is allowed only with the consent of each employee. The employee can express his will by reading the relevant order (instruction) of the employer. At the same time, since the establishment of part-time work is not permanent, it is not advisable to draw up an additional agreement attached to the employment contract that defines this condition. An additional agreement is possible if the employer and the employee agree that the latter's part-time work will be permanent.

If the employee refuses to continue working on these conditions, the employment contract is terminated under paragraph 2 of Art. 81 of the Labor Code with the provision of appropriate guarantees and compensations to the employee (see Articles 81, 178 - 180 of the Labor Code and commentary thereto).

In accordance with the Regulations on the organization of work to promote employment in the conditions of mass release, approved. Decree of the Council of Ministers of the Russian Federation of February 5, 1993 N 99, the main criteria for mass layoffs are the indicators of the number of dismissed employees in connection with the liquidation of the organization or the reduction in the number or staff of employees for a certain calendar period.

At present, the criteria for mass layoffs are determined in industry and (or) territorial agreements, therefore, the rules provided for by the said Regulations apply only if there are no relevant provisions in the agreements (see Article 82 of the Labor Code and commentary thereto).

On the procedure for taking into account the opinion of the elected body of the primary trade union organization, see Ch. 58 of the Labor Code and commentary to it.

6. The rules of parts 5 and 6 of the commented article are not universal: a) their application is the right, but not the obligation of the employer; b) they are applied in cases of mass dismissal of workers; c) they are of a temporary nature, since they are applied “in order to preserve jobs” (i.e. it is assumed that the circumstances that led to the reduction in working hours are of a transitory nature and after they are eliminated, the working hours stipulated by the employment contract will be established for employees) .

In the absence of at least one of the formulated conditions, these rules do not apply and the released workers can be dismissed according to the rules of paragraph 2 of Art. 81 of the Labor Code with the provision of appropriate guarantees and compensation.

7. The Labor Code proceeds from the unconditional recognition of the fact that changes in working conditions are always carried out at the initiative of the employer. Therefore, it is established that changes in the terms of the employment contract cannot be introduced that worsen the position of the employee in comparison with the terms of the collective agreement, agreement (part 8 of the commented article). In addition, local regulations, providing for the introduction, replacement and revision of labor standards, are adopted by the employer, taking into account the opinion of the representative body of employees, and employees must be notified of the introduction of new labor standards no later than two months in advance (see article 162 of the Labor Code and commentary thereto).

Thus, new working conditions, entailing a change in the employment contract, can be introduced solely by the employer only if they do not worsen the position of the employee in comparison with the terms of the collective agreement (agreement); otherwise, they can be introduced if the content of the collective agreement (agreement) is revised accordingly, and, if necessary, the opinion of the workers' representative body is taken into account.

At the same time, a change in the terms of an employment contract may be the result of objective factors, for example, a change in the situation in the commodity markets in which the employer operates, entails the need to reform the applied technologies or labor organization. In such cases, the will of the employer is not aimed at changing the terms of the employment contract, but at adapting it to new economic realities through the reorganization of production in order to ensure its existence as an economic entity. Since the employer can make changes to the content of the employment contract, provided that appropriate changes are made to the collective agreement or agreement (which is possible only if there is a counter expression of will of the other party (parties) in the contract or agreement), in the absence of such an expression of will, the implementation of Art. 74 TK becomes impossible. In this case, the employer is forced either to amend the employment contract on the basis of general rules on transfers to another permanent job (see articles 57, 72, 72.1 of the Labor Code and commentary to them), i.e. with the consent of the employee; or apply the rules on temporary transfers in connection with the occurrence of circumstances of an extraordinary nature (see Article 72.2 of the Labor Code and the commentary thereto); or apply the legal mechanisms established by law to terminate the employment contract (see Chapter 13 of the Labor Code and commentary thereto).

8. The legislator abandoned the earlier applied in Part 3 of Art. 25 of the Labor Code of the term "changes in essential working conditions", replacing it with the concept of "changes in the terms of an employment contract". Based on this, they do not matter and do not entail any legal consequences arbitrarily serious changes in working conditions, if they are not associated with a change in the content of the employment contract. For example, the installation of new equipment, computers, accessories is not always associated with a change in the labor function (specialty, profession, qualification or position), salary, working hours or other conditions established by the employment contract, but this may lead to significant changes in the actual working conditions of the worker.

Since the content of the employment contract does not change in this case, such changes can be made by the employer without observing the rules on transferring to another job, including the rules established by the commented article. In this case, the employee who does not want to continue working in the new working conditions retains the right to terminate the employment contract on his own initiative (see Article 80 of the Labor Code and the commentary thereto), and the employer has the opportunity to terminate the employment contract with the employee if there is relevant grounds (see Article 81 of the Labor Code and commentary thereto).

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At any enterprise, circumstances may arise in which it will be necessary to change the essential working conditions in employment contracts. The procedure for actions in such situations is prescribed in article 74 of the Labor Code. Learn more in the article and download a sample order.

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Essential working conditions

The concept of "essential conditions" when concluding an employment contract is given in article 57 of the Labor Code of the Russian Federation. Essential is called mandatory conditions, which must be prescribed in the employment contract and which regulate the entire mode of work at a particular workplace. There are also additional conditions that are prescribed if necessary.

From the mandatory nature of the essential conditions, it follows that any change to them is possible either by agreement with the employee, or in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation. It does not matter whether this is caused by organizational or technological innovations in the enterprise.

If the change occurs by agreement of the parties, then it is necessary with the employee, which stipulates new conditions. If the reasons are organizational or technological, the consent of the employee is not required, but a special procedure must be followed:

document changes in organizational or technological working conditions;
two months before their entry into force, notify the employee (14 calendar days in advance if the employer is an individual) and notify him against receipt or by means of a letter with acknowledgment of receipt;
if the employee agrees, then this consent should be documented (it can be issued in the form of an additional agreement to the employment contract);
consolidate in the relevant local acts (changes in the operating mode - in, wage conditions - in the Regulations on wages and bonuses, technological - in the instructions for labor protection, the Regulations on trade secret etc.).
all amendments to local acts of employees must be familiarized against signature.

Changes in organizational or technological working conditions

The legislation does not yet clearly define what should be considered a change in organizational conditions. There is, but it does not clarify this issue. It contains only an open list of examples of what can be classified in this category.

Based on existing legislative norms, we can say that organizational working conditions are:

management structure of the enterprise;
form of labor organization (rental, contract, brigade, etc.);
etc.

Changing organizational working conditions implies certain changes in the structure of the organization. It can be caused by various reasons, but it always entails changes in the mode of operation, the appointment of employees to other positions, their transfer to other departments, staff reductions, etc.

Having such a definition, we can more clearly imagine what changes in working conditions can be attributed to organizational ones:

in the management structure of the organization;
the introduction of new forms of labor organization (team, rental, contract, etc.);
changes in the modes of work and rest;
replacement, revision or introduction of new workflow standards;
redistribution of the load between departments or positions, followed by a change in wage systems.

Note that this list is an estimate and in practice can be supplemented with new examples.

Changes can be not only organizational in nature. For example, the renewal of the fleet of machines or the transition to other technological standards will also most likely lead to a change in the mode of operation of the enterprise. This may result in a revision of the terms of employment contracts. In such cases, we can talk about a change in technological working conditions.

Technological working conditions are changes associated with innovations in technical processes in the performance of work, the production of goods or the provision of services.

Their list looks like this:

introduction of new production technologies;
implementation of improvements in the workplace;
transition to the release of new types of products;
correction of existing or introduction of new technical regulations.

Order on changing working conditions (sample)

The order must include the following information:

justify the introduction of innovations in the workflow;
provide a list of employees to whom they are related;
appoint responsible persons and give them the necessary instructions.

Further, everything will depend on how the change in essential UT occurs. If they are introduced in agreement with the employee and are not associated with changes in the organizational or technological working conditions, then an additional agreement to the employment contract is drawn up. Otherwise, a written notice to employees will be required.

At the end of the process, it will be necessary to familiarize all the employees whom it concerns with the content of the order. This must be done within two months.

Article 74 of the Labor Code of the Russian Federation with comments

This article describes all the options for the actions of the employer and employee when changing organizational or technological working conditions.

We bring to your attention the full text of the article:

Article 74 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 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 this Code.

In the event that the reasons specified in 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 a part-time work regime day (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 this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

It is important for the employer to understand that hasty decisions or errors in paperwork when revising the terms of an employment contract can lead to a violation of the employee's rights and, accordingly, to a lawsuit.

For example, an employer should offer an employee several job options if his own should be abolished due to upcoming changes. New job should also the state of health of the employee. In the absence of a suitable workplace, a lower position should be offered, or in another unit, but in the same area.

In extreme cases, the employer may offer work in a unit located in another area. Only when none of these options suits the employee, the employer has the right to terminate the employment contract with him (). Failure to comply with this procedure may result in legal action.

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.

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 regulatory acts, 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. At the same time, the employee is provided with appropriate guarantees and compensation.

Commentary on Art. 74 Labor Code of the Russian Federation

1. A change in the terms of an employment contract determined by the parties (with the exception of a change in the labor function of an employee) is possible due to a change by the employer in organizational or technological working conditions with prior written notification of this to employees no later than two months in advance.

2. If the employee does not agree with the new working conditions and there are no vacancies for him (including lower paid ones), taking into account the state of health of the employee or the employee refuses the offered job, labor relations are terminated by (see commentary to this article).

3. The criteria for mass layoffs, under which the employee must be provided with appropriate guarantees and compensations, are determined in sectoral (intersectoral) and (or) territorial agreements, taking into account the provisions established by the Decree of the Council of Ministers - the Government of the Russian Federation of February 5, 1993 N 99 "On organization of work to promote employment in conditions of mass dismissal ”(SAPP. 1993. N 7. Art. 564).

4. Changes in the terms of the employment contract determined by the parties according to the rules of Art. 74 of the Labor Code should not worsen the position of employees in comparison with the collective agreement, agreement.

Second commentary on Article 74 of the Labor Code

1. Changing the terms of the employment contract determined by the parties is possible not only when transferring to another job, but also as a result of changes in the organizational and technological working conditions, which we call a conditional transfer (i.e., only with the specified organizational and technical changes). At the same time, the labor function of the employee should not change, i.e. he continues to work in the same position, in the same specialty, qualifications, but with a change in other essential terms of the contract (system and amount of remuneration, benefits, working hours, etc.). With all changes in the employment contract, its conditions should not be contraindicated to the health of the employee.

2. Changing the terms of the employment contract determined by the parties while continuing to perform the same labor function is allowed at the initiative of the employer, only when there have been changes in the organizational or technological working conditions, i.e. technology, organization of jobs, labor, production technology have changed. Otherwise, the employer does not have the right to change the essential working conditions of the employee. In the event of a dispute, the court, having revealed that no changes have occurred in the organization or labor technology, will oblige the employer to restore the previous essential conditions of the employee's employment contract.

3. The employee must be notified in writing by the employer of the specified changes in the terms of the employment contract determined by the parties. He must make this notification no later than two months before the introduction of changes, unless otherwise provided by the Code or other federal law. Changes to the essential terms of the employment contract cannot be introduced if they worsen the position of the employee in comparison with the terms of the collective agreement, social partnership agreement.

Trade union labor inspectors, authorized (trusted) persons for labor protection of trade unions have the right to take part in the consideration labor disputes associated with changes in working conditions, failure to fulfill obligations under collective agreements, agreements (see to it).

4. If the employee does not agree to continue working in the new conditions, then, as indicated in Part 3 of Art. 74, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health (as well as not prohibited for women, minors, when the essential conditions of their work change). In the absence of such work, a vacant lower-paid job (or a lower position) should be offered, which the employee can perform, taking into account his qualifications and state of health. In the absence of such work or in case of refusal of the employee, he is dismissed under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

5. Part 5 of Art. 74 of the Labor Code of the Russian Federation provides that, if the circumstances of part 1 of this article, i.e. changes in organizational or technological working conditions may lead to mass dismissal of employees, in order to save jobs, the employer has the right, taking into account the opinion of the trade union committee of the organization, to introduce a part-time regime for up to six months. This is a new rule in the Code. It facilitates the position of the employer when he introduces progressive technologies and methods of organizing labor, modifying production. At the same time, it worsens the situation of workers transferred to.

If the employee at the same time refuses to continue working part-time (shift) and (or) part-time working week, his employment contract is terminated due to a reduction in staff, number under paragraph 2 of Art. 81 of the Labor Code with the provision of appropriate guarantees and compensations (see to it).

Cancellation of the part-time work regime by the employer is made with a preliminary request and taking into account the opinion of the trade union committee of the organization.

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 to keep in force all labor agreements that the employee and the employer came to when concluding an employment contract (TD). Moreover, the current situation may suit the employee, but the employer may not like it.

Does he have the ability to somehow influence the situation? Does he have the right to deviate from the original agreements for the benefit of the business?

Yes, but subject to certain conditions.

Labor Code in Art. 74 allows for the possibility of a unilateral change by the employer of the conditions of TD with employees due to changes in organizational or technological working conditions, and also establishes a strict procedure for introducing such changes. It must be strictly observed. Otherwise, the change in the original employment agreements may be challenged by the employee.

In general, the scheme of actions required by the Code is clear and understandable, and only partly needs additional comments. We will give them later in the article.

What conditions can be changed under Article 74 of the Labor Code of the Russian Federation?

In the event of an organizational or technologically justified need, the employer has the right to change almost any condition of the TD (and even several conditions at once). The ban is set only on changing the labor function. In other words, the position, profession or type of assigned work should remain in its original form. Everything else is changeable. For example, the place of performance of labor duties, the mode of work or work schedule, and even the level of remuneration for work may change. Other adjustments are possible.

Read more about the conditions included in labor agreements in the article. "The procedure for concluding an employment contract (nuances)" .

What, according to Art. 74 of the Labor Code, is meant by a change in organizational or technological working conditions?

In Art. 74 of the Labor Code of the Russian Federation among the reasons are changes in the technique and technology of production, as well as its structural reorganization. These include:

innovations in the management structure;
redistribution of workload between departments or positions;
development of advanced technologies, equipment;
other improvements.

In general, the list of reasons is open and determined by the specifics of the business and the characteristics of each specific situation. But in accordance with the comments to Article 74 of the Labor Code from the Plenum of the Armed Forces of the Russian Federation, in the event of a dispute, it is strictly on the employer to confirm the organizational and technological nature of the changes and prove that it was because of them that it was impossible to maintain all previous agreements with employees (paragraph 21 of the resolution dated March 17, 2004 No. 2).

IMPORTANT! Changes in TD cannot be based on such circumstances - a decrease in sales and a deterioration in the financial position of the company. The courts do not recognize them as organizational and technological changes.

What is the procedure for changing the terms of an employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation?

The general scheme looks like this:

Preparation of changes in TD.

An appropriate organizational and administrative document (order, order) is issued indicating all the circumstances and reasons that initiated the changes.

Informing about upcoming changes to the part of the team that they affect.

Inform in writing, the procedure is chosen by the employer. In practice, for this, either employees are introduced to the order against signature, or appropriate notifications are sent. They must indicate the nature of the changes and their reasons. The fact of sending the 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 expiration of the 2 months allotted for informing, the TD is terminated under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation with the payment of severance pay - 2 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.