Vacancy or position. Staffing from a to z. Vacation pay needs to be indexed if the salaries of the entire state have increased

The legislator established the obligation of the employer to offer the employee vacant positions in case of staff reduction. The vacant position must be free, correspond to the qualifications of the employee, and it can also be lower paid or lower. In addition, the vacant position must be located in the same locality

27.05.2015

In any activity modern company there may be a need to reduce the number or staff due to business needs. The employer is obliged to fully comply with the reduction procedure provided for by law in order for the dismissal to be lawful. Unfortunately, in practice it is not always easy to exactly comply with the requirements of the law, especially when these requirements are not clear enough and lead to inconsistencies. In this article, we will focus on some of the nuances that may not be taken into account in the process of offering vacancies, as well as consider controversial issues.

What positions to offer in case of staff reduction?

Labor Code prescribes to offer the reduced employee positions that meet the following criteria (Article 81 of the Labor Code of the Russian Federation):

the position must be vacant;
the work must correspond to the qualifications of the employee or be lower paid (lower position);
for health reasons, the employee can perform the proposed work;
the job must be in the given locality, unless there is an obligation to offer work in another locality collective agreement agreements, employment contracts.

However, the Labor Code does not provide more detailed explanations regarding the established criteria for the proposed positions, in connection with which employers have to focus on business customs and judicial practice.

What is a vacancy?

The definition of "vacant position" is not established by law. Therefore, in practice, a vacant position is often understood as a position that exists in the staff list, but is not replaced by any specific employee.

At the same time, a number of issues remain unclear, including the possibility of classifying as a vacancy a position that is filled by a temporarily absent employee (for example, on maternity leave or parental leave). On the one hand, this job is temporarily free, since the position is retained by the temporarily absent employee, and therefore is not a full-fledged replacement for the reduced one. However, on the other hand, the legislation does not state that an employer should not offer temporarily vacant positions when he has no other vacant positions.

Unfortunately, there is no consensus on this issue in judicial practice. Thus, the St. Petersburg City Court came to the conclusion that the fact that new job could be temporary, cannot serve as a basis for the absence of its proposal to the reduced employee (cassation ruling of the St. Petersburg City Court dated March 15, 2012 No. 33-3894 / 2012). Because the Labor Code provides for the obligation of the employer to offer the employee any job and does not indicate whether it should be permanent or temporary.

At the same time, the position of the Moscow regional court differs: the court points out that the employer is not obliged to offer temporarily vacant positions, since, within the meaning of the current legislation, they are not vacant (appellate ruling of the Moscow Regional Court of December 20, 2012 No. 33-24613 / 2012). In addition, the judges decide vacant position. In their opinion, a vacant position is a vacant position that is on the staff list, not occupied by anyone and not burdened with the rights of other persons, that is, according to it, this moment an employment contract has not been concluded (including with an employee who is on parental leave and with a part-time job) (appellate ruling of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012).

It is fair to note that the above definition also provides clarifications for another question that often arises in practice: is the position held by a part-time job vacant? No, it is not, since an employment contract has been concluded under it.

But at the same time, it must be borne in mind that when combining, a separate employment contract is not concluded. However, an agreement to perform additional work establishes obligations for the employer, from which he cannot refuse and, by virtue of which, he will not be able to offer this work downsizing employee. In our opinion, these features should be taken into account in each particular case separately, taking into account other circumstances.

How to take into account the qualifications of an employee when reducing staff?

As we have already said, the employer is obliged to offer the reduced employee those positions that correspond to his qualifications or are lower paid and lower. The Labor Code gives a clear definition of the qualifications of an employee. It is understood as the level of knowledge, skills, professional skills and work experience of an employee (Article 195.1 of the Labor Code of the Russian Federation).

The courts point out that the description of qualification requirements in job descriptions is the basis for determining the suitability of the position. In this regard, in order to have the appropriate arguments in the event of litigation, the employer needs to make sure that the job descriptions have clear qualification requirements.

In addition, the courts often believe that the employer has the right to assess the real possibility of the reduced employee to perform work in the available vacancies, taking into account his education, qualifications, work experience and existing skills (cassation ruling of the Moscow City Court of July 19, 2013 No. 4g / 2-6454 / 13). That is, the employer, in the presence of a work book, documents on education and other available information, can judge the qualifications of an employee.

However, unfortunately, the employer does not always have such information in full. An employee, for example, might not provide information about additional education, which was not directly related to the reduced position, but could serve as proof of the employee's qualifications for admission to the vacant position. In this regard, in order to minimize possible risks, the employer should offer the employee the widest possible list of vacancies so that the employee can choose the position that suits his education and experience, independently assessing his qualifications. At the same time, the offer of all vacancies, including those that do not correspond to the qualifications of the employee, is not misleading the employee. This conclusion was reached by the Moscow City Court (ruling of the Moscow City Court dated September 27, 2013 No. 4g/5-9578/13).

Also, employers should be aware of the need to offer the employee all vacant positions, including a lower position or lower paying job to which, in the opinion of the employer, the employee will not agree. Arbitrage practice confirms that since this duty is enshrined in law, then its violation due to the conviction that the employee will refuse the proposed position may lead to the recognition of the dismissal as unlawful (appellate ruling of the Moscow City Court of 08/06/2013 No. 11-25018 / 13).

Where to offer vacancies?

The employer must offer suitable vacancies available to him in the given area. The obligation to offer suitable positions in other areas arises only if it is fixed by a collective agreement, agreements or an employment contract.

The Supreme Court of the Russian Federation in its decision gave a clear definition of the concept of "other locality". So, another locality is a locality outside the administrative-territorial boundaries of the corresponding settlement (post. Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

It does not matter whether it is a vacancy in another branch or structural divisions, since the only criterion is the need to offer all vacancies in a given area.

When and how to offer vacancies?

Since the legislation does not clearly establish when and how to offer vacancies, the employer should offer them during the entire time from the moment of notice of the reduction and up to dismissal. For the purposes of documentary evidence, the employee should be notified in writing against the signature of vacancies indicating the date of notification.

Thus, since the offer of vacancies to redundant employees is one of the elements of the dismissal process, in case of incomplete compliance with the procedure for offering vacancies, the dismissal may be considered unlawful. And this may entail not only the restoration of the employee, but also the payment of average earnings for the period of forced absenteeism and compensation for non-pecuniary damage.

Is the position held by the part-time job vacant?

The law does not contain a definition of the term “vacant position”. At the same time, judicial practice adheres to a stable position that a vacant position is one that is not occupied by any employee - the position is indicated in the organization's staffing table, but an employment contract for its replacement has not been concluded with anyone (determinations of the Vologda Regional Court dated May 18, 2011 No. 33 -2323/2011, Rostov Regional Court dated August 15, 2011 No. 33-11141, etc.).

Part-time employment - performance by an employee of other regular paid work on the terms employment contract in their free time from their main work (Article 282 of the Labor Code of the Russian Federation).

This definition does not allow us to consider a part-time position as a vacant one, since an employment contract is concluded with a part-time worker, as well as with a “regular” employee, and the part-time worker has equal rights with an “ordinary” employee. This position is unanimously adhered to by the courts (determinations of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012, the St. Petersburg City Court dated July 7, 2011 No. 33-10321, etc.).

At the same time, although an employment contract concluded for an indefinite period with a part-time job may be terminated if a person is hired for whom this work will be the main one (Article 288 of the Labor Code of the Russian Federation), termination of an employment contract with a part-time job is a right, not an obligation employer. Therefore, the employer is not obliged to offer the reduced employee the position occupied by a part-time worker, dismissing the latter and providing the vacant position to the reduced one.

Yuri Ivanov, senior lawyer of practice labor law law firm Goltsblat BLP

Temporarily vacant positions as a vacancy

A vacant position must be understood as a position that is legally (no one is listed in the staff list) and actually is not occupied by anyone. It is not a vacant position in which the employee is listed in the staffing table, but is temporarily not working and can always return. For example, a position retained by an employee for the period of parental leave (Article 256 of the Labor Code of the Russian Federation) or sick leave for pregnancy and childbirth (determination of the IC in civil cases of the Omsk Regional Court dated February 15, 2012 No. 33-1239 / 2012).

If the position is occupied by a part-time job, it is also not vacant. The employer has the right, but is not obliged to terminate the employment contract with a part-time job in the event of hiring the main employee (Article 288 of the Labor Code of the Russian Federation). In addition, work on it is carried out on the basis of a concluded employment contract (Article 60.1 of the Labor Code of the Russian Federation). At the same time, some courts point out that if there is a part-time job for 0.5 positions in any position, the remaining 0.5 free positions are considered vacant (determination of the St. Petersburg City Court dated April 13, 2011 No. 2011). When combining a position without concluding an employment contract, it is also not vacant, since work is performed and wages are paid for it (determination of the IC in civil cases of the Kostroma Regional Court of February 13, 2012 No. 33-36).

Despite the above nuances labor relations, the author recommends that employers, in order to avoid unnecessary conflicts, offer the laid-off employee all suitable and temporarily actually unoccupied positions that are not vacancies in the legal sense. A similar opinion is shared by Rostrud (letter of Rostrud dated July 29, 2009 No. 22636-1). He indicates that the employer can offer the dismissed employee the position of an employee who is on parental leave.

Please note that this position will be temporary, not permanent. And the reduced person must be notified in writing about this in order to avoid complications in possible litigation.

Alexei

If my Employment Contract says: The Employee's place of work - separate subdivision Employer in St. Petersburg, place of performance official duties- St. Petersburg. Work of the Employee in other places as needed (both within Russian Federation, and beyond) is made out as business trip. The contract was signed in Moscow, where the head office is located. Should an employer, with a reduction, offer vacancies not only in St. Petersburg, but also in all companies, in particular in Moscow time?

Faith

In a week (June 1) my position will be reduced, there is a notice of reduction, there are no positions offered! Does this mean that the employer is obliged to pay me 3 months of benefits while I stand at the labor exchange? And what will happen if I am offered a position below mine and with a lower salary, and I refuse it?

Ludmila

(July 20) my position will be reduced, there is a notice of reduction, there are no positions offered! Does this mean that the employer is obliged to pay me 3 months of benefits while I stand at the labor exchange? And what will happen if I am offered a position below mine and with a lower salary, and I refuse it?

Alyona

Good afternoon! Please tell me, on July 25, 2018, an order was issued to reduce my position. September 26 - the date of the reduction of the position. During this time, I was never offered vacancies, during this time the company caused more than 100 people to work. Today I receive a notification, they say come on September 24 (2 days before the reduction), we will introduce you to open vacancies. The question is, is the company's actions legal?

Established the obligation of the employer to offer the employee vacant positions in case of staff reduction. This position must be free, correspond to the qualifications of the employee, and may also be lower paid or lower. In addition, the vacancy must be located in the same locality.

In the activities of any modern company, it may be necessary to reduce the number or staff of employees, caused by the needs of the business.

The employer is obliged to fully comply with the reduction procedure provided for by law in order for the dismissal to be lawful. Unfortunately, in practice it is not always easy to exactly comply with the requirements of the law, especially when these requirements are not clear enough and lead to inconsistencies.

In this article, we will focus on some of the nuances that may not be taken into account in the process of offering vacancies, as well as consider controversial issues.

What positions to offer?

The Labor Code prescribes to offer the laid-off employee positions that meet the following criteria*(1):

1) the position must be vacant;
2) the work must correspond to the qualifications of the employee or be lower paid (lower position);
3) for health reasons, the employee can perform the proposed work;
4) work must be in the given locality, if the obligation to offer work in another locality is not provided for by the collective agreement, agreements, labor contract.

What is a vacancy?

Unfortunately, there is no consensus on this issue in judicial practice. Thus, the St. Petersburg City Court came to the conclusion that the fact that a new job could be temporary cannot serve as a basis for the absence of its offer to the reduced employee * (2). Because the Labor Code provides for the obligation of the employer to offer the employee any job and does not indicate whether it should be permanent or temporary.

At the same time, the position of the Moscow Regional Court is different: the court points out that the employer is not obliged to offer temporarily vacant positions, since, according to the current legislation, they are not vacant * (3). In addition, the judges determine the vacancy. In their opinion, a vacant position is a vacant position that is on the staff list, not occupied by anyone and not burdened by the rights of other persons, that is, an employment contract has not been concluded for it at the moment (including with an employee who is on parental leave for a child, and with a part-time worker) * (4).

Appeal ruling of the Moscow Regional Court dated December 20, 2012 in case N 33-24613/2012
In accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in cases of reduction in the number or staff of the organization's employees.

Dismissal on the specified grounds is allowed if it is impossible to transfer the employee with his written consent to 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 state of health .

<...>
The unreduced position of the leading specialist held by<...>, for the period of her being on maternity leave, the employer was not obliged to offer, since, within the meaning of the current legislation, she is not vacant.

It is fair to note that the above definition also provides clarifications on another question that often arises in practice: is the position occupied by a part-time job vacant? No, it is not, since an employment contract has been concluded under it.

But at the same time, it must be borne in mind that when combining, a separate employment contract is not concluded. However, the agreement for the performance of additional work establishes obligations for the employer, from which he cannot refuse, and by virtue of which he will not be able to offer this work to the reduced employee. In our opinion, these features should be taken into account in each particular case separately, taking into account other circumstances.

How to take into account the qualifications of an employee?

As we have already said, the employer is obliged to offer the reduced employee those positions that correspond to his qualifications or are lower paid and lower.

The Labor Code gives a clear definition of the qualifications of an employee. It is understood as the level of knowledge, skills, professional skills and work experience of the employee * (5).

The courts point out that the description of qualification requirements in job descriptions is the basis for determining suitability for the position. In this regard, in order to have the appropriate arguments in the event of litigation, the employer needs to make sure that the job descriptions have clear qualification requirements.

In addition, the courts often believe that the employer has the right to assess the real ability of the reduced employee to perform work in the available vacancies, taking into account his education, qualifications, work experience and existing skills * (6). That is, the employer, in the presence of a work book, documents on education and other available information, can judge the qualifications of an employee.

However, unfortunately, the employer does not always have such information in full. An employee, for example, could not provide information about additional education, which was not directly related to the position being reduced, but could serve as proof of the employee's qualifications for entering a vacant position. In this regard, in order to minimize possible risks, the employer should offer the employee the widest possible list of vacancies so that the employee can choose the position that suits his education and experience, independently assessing his qualifications. At the same time, the offer of all vacancies, including those that do not correspond to the qualifications of the employee, is not misleading the employee. The Moscow City Court * (7) came to this conclusion.

Also, employers should be aware of the need to offer the employee all vacant positions, including a lower position or a lower-paid job, for which, in the opinion of the employer, the employee will not agree. Judicial practice confirms that since this obligation is enshrined in law, its violation due to the conviction that the employee will refuse the proposed position may lead to the recognition of the dismissal as unlawful * (8).
Where to offer positions?

It does not matter if it is a vacancy in another branch or structural subdivisions, since the only criterion is the need to offer all vacancies in the given area.

When and how to offer vacancies?

E. Ukhova,
EY Partner, Head of Management Services
performance efficiency and staff motivation in the CIS

L. Sapronova,
EY Manager, Tax and Legal Services,
a group of integrated solutions for employers and employees

*(1) Art. 81 of the Labor Code of the Russian Federation
*(2) cassation ruling of the St. Petersburg City Court dated March 15, 2012 N 33-3894/2012
*(3) Appellate ruling of the Moscow Regional Court dated December 20, 2012 N 33-24613/2012
*(4) Appellate ruling of the Moscow City Court dated September 28, 2012 N 11-2984/2012
*(5) Art. 195.1 of the Labor Code of the Russian Federation
*(6) cassation ruling of the Moscow City Court dated July 19, 2013 N 4g/2-6454/13
*(7) ruling of the Moscow City Court dated September 27, 2013 N 4g/5-9578/13
*(8) appeal ruling of the Moscow City Court of 08/06/2013 N 11-25018/13
*(9) post. Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2

M.A. answered the questions. Kokurina, lawyer

staffing: we solve emergency situations

Strictly speaking, according to Qualification Handbook positions, a labor economist should be involved in compiling the staffing table Qualification directory of positions, approved. Decree of the Ministry of Labor of 21.08.98 No. 37. But it happens that there is no such position even in big company. Therefore, the execution of this document is entrusted to both personnel officers and accountants. After all, it is these people who have information about the structural divisions of the company, the positions available in them and their status (employed / vacant), the number of staff positions and salaries for each position.

So, if the manager instructed you to draw up the staffing table or make changes to it, do not be alarmed. We have prepared for you a sample of filling out the staffing table in the "Document Management" section on. And here are the answers to some questions from our readers who have already taken up this matter.

Employees do not need to be familiarized with the staffing table

THEM. Pekareva, Novosibirsk

We don't have a staffing table. And one dissatisfied worker began to threaten that he would complain to the labor inspectorate, because he was not familiarized with this document when he was hired. Should we have done it?

: According to Rostrud, the staffing is a local regulatory act (LNA), which fixes Clause 1 Letters of Rostrud dated March 22, 2012 No. 428-6-1:

the existing division of labor between workers;
terms of payment for their work.

The Labor Code of the Russian Federation obliges to acquaint the employee with those of the LNA who are “directly connected with labor activity employee » Art. 68 Labor Code of the Russian Federation. Therefore you are not required to show the staffing table to the employee if:

have his signature that before signing the employment contract, he was familiarized with both the job description and the LNA containing the rules for determining the amount of remuneration for his work (for example, this may be a provision on remuneration) Art. 68 Labor Code of the Russian Federation;
his salary, surcharges and allowances specified in the employment contract Art. 57 of the Labor Code of the Russian Federation.

The staff list is kept by the one who is responsible for it.

M.A. Markulov, Kazan

Is it correct that our staff list is kept by personnel officers? And how long do you need to store already inactive staffing tables?

: You can keep the staff list where it is convenient - no special requirements have been established by law. If, according to your workflow regulations, the personnel department is involved in making changes / additions to the staffing table, let it be stored there.

And you need to store the schedule itself and orders that change it in the company constantly, that is, indefinitely item 71 of the List, approved. Order of the Ministry of Culture dated August 25, 2010 No. 558.

In the staffing table, you can enter positions that are temporarily replaced

I.T. Plekhanov, Podolsk

From time to time we need to hire a quality specialist. On the basis of a civil law contract, the specialist we need does not want to work. Can we include in our staffing temporary position, for example, for 3-4 months, in order to accept him under an employment contract for this period?

: You can:

<или>simply add such a position to the staff list and do not note in any way that it is temporary;
<или>indicate in the staffing table that the position is temporary or is replaced for a certain period. For example, you can indicate this in column 10 "Note" of form No. T-3.

But keep in mind: even if in the staff list you indicate the temporary nature of the position, you cannot conclude a fixed-term employment contract only on the basis of this. If you hire a specialist for a while, in his employment contract you must indicate the reason for the "urgency" provided for by the Labor Code of the Russian Federation. Suppose he comes to perform temporary or seasonal work. Art. 59 Labor Code of the Russian Federation.

Choose the way to change the staffing

THEN. Lorkovic, Moscow

Can I raise salaries for several positions in one order and approve a new staffing table?

: Any changes to the staffing table are made by order of the head of the organization. There are no special rules. You can make such an order.

ORDER No. 13-5
on salary increases and staffing arrangements

I ORDER:

1. Set from 01.04.2013 salaries for positions:
- master production site- 35,000 rubles;
- assistant foreman of the production site - 28,000 rubles;
- technologist of the production site - 38,000 rubles.

2. Approve the new staffing table You can do it differently - indicate the following in the above order: “Introduce changes to the staffing table No. 2 of 01/31/2010 from 04/01/2013, taking into account the increase in salaries for the positions indicated in paragraph 1.” But this option is only suitable if you rarely make changes to the staffing table.
It is more convenient, of course, each time to assert new edition staff schedule. It’s easier to see the current situation in the state than to look for innovations in various orders with the heading “On changes to the staffing table” No. 3 dated February 27, 2013 (attached) and enter into force on April 1, 2013.

And do not forget, before the approval of the new staffing table, to conclude with employees who are changing salaries, additional agreements to employment contracts.

Only a vacant position can be deleted from the staff list

ETC. Yudin, Pyatigorsk

The head instructed me to remove from the staff list the position occupied by an employee who went on maternity leave, and then on parental leave. And I had some doubts, is it possible to do this at all?

EXPLAINING TO THE MANAGER

If a woman on parental leave wants to return to work before the child reaches the age of 3, she must be accepted, even if her position is deleted from the staff list.

: Your doubts are justified - as you say, it is possible to “remove a position” only if it is vacant. Otherwise, we are talking about downsizing.

When a woman goes on maternity leave/maternity leave until she reaches the age of 3, she retains her job. And under no circumstances can her position be reduced x articles 256, 261 of the Labor Code of the Russian Federation. This position is considered occupied, even if the duties for it are assigned to other employees.

Vacation pay needs to be indexed if the salaries of the entire state have increased

I.B. Lanina, auditor, Moscow

We do audit companies where there is an order to change the staffing table in connection with the introduction of several new positions and an increase in salaries for old positions. How to calculate vacation pay correctly - taking into account the average salary of the employee, increased by the increase factor, or not?

: First of all, look at whether the salaries of all employees of the company, individual employees or an entire structural unit (department, workshop, section, territorially separate branch or representative office of the company) have increased clause 16 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2). Depending on this, and act e clause 16 of the Regulations, approved. Decree of the Government of December 24, 2007 No. 922:

<если>salaries were increased for all employees of one department or company, without exception, then calculate the increase coefficient and increase earnings for it when calculating vacation pay;
<если>salaries were increased for individual employees, then it is not necessary to calculate the increase coefficient and index it to it average earnings to calculate holiday pay.

There may be vacancies in the staffing table

M.A. Pushkareva, Pushkin

Our personnel inspector quit, his duties were assigned to the accountant by order of the director. How can this be reflected in the staffing table? Is it possible to completely exclude the personnel department from the staff list?

: Can. But first, check with your manager if he is going to hire personnel officers in the future. If yes, then it is better not to touch the staff list, let there be a vacant position.

If you take the company personnel workers no longer planned, you can prepare for approval by the manager:

<или>an order to change the staffing table in connection with the elimination of the personnel department;
<или>an order to introduce a new version of the staffing table that does not contain personnel positions.

The full salary is included in the staffing table.

S.E. Khorosheva, St. Petersburg

We are hiring two deputy directors. But one is full-time, and the other is part-time. How to reflect this in staff units and what to write in the staffing column “Salary”: a whole salary for the position or half?

: In your situation, the staffing table can be filled in as follows:

Structural subdivision		Position (specialty, profession), rank, class (category), qualification	Number of staff units	Tariff rate, salary, rub.	Allowances, rub.			Total per month (gr. 5 + gr. 6 + gr. 7 + gr. 8) x gr. four	Note
Name	the code		Number of staff units	Tariff rate, salary, rub.	Allowances, rub.			Total per month (gr. 5 + gr. 6 + gr. 7 + gr. 8) x gr. four	Note
1	2	3	4	5	6	7	8	9	10
...
Administration	01	...	...	...	...	...	...	...	...
		Deputy General Director	1,5	20 000	-	-	-	30 000	-

Or like this:

the condition of payment in proportion to the hours worked.

There can be no different salaries for the same positions.

T.D. Pashkevich, Moscow

Coming to us now new employee for a vacant specialist position. The director said that his salary would be higher than that of an employee who already works for us in the same position.
But I doubt: is it possible to put two “specialist” positions with different salaries in the staff list?

: It is forbidden Letter of Rostrud dated April 27, 2011 No. 1111-6-1. Usually, if the labor inspector discovers such discrepancies during the inspection, he fines for violation labor law and issues an order to establish the same salaries for the same positions Determination of the St. Petersburg City Court dated November 14, 2011 No. 33-16864.

WE REMIND THE MANAGER

Set different salaries for people working in the same positions, it is forbidden. If some employee wants to pay more than others in the same position, you can either rename his position or set him some kind of allowance.

Therefore, discuss with the manager the changes to the staffing table:

<если>if your company has a local regulation (perhaps a payment regulation) that provides for any compensatory or incentive bonuses to salary, then write down the same salaries for these employees, and set bonuses for a higher-level specialist. See what suitable allowances are in the internal act of the company. For example, the knowledge bonus foreign language, per professional excellence, for the performance of especially important tasks, etc.;
<если>If you don’t have any salary increments in the company, then write down different job titles in the staffing table. Let's say a specialist and a leading (senior, chief) specialist. And do not forget to prepare a separate job description of the leading specialist, if you do not have one.

The legislator established the obligation of the employer to offer the employee vacant positions in case of staff reduction. This position must be free, correspond to the qualifications of the employee, and may also be lower paid or lower. In addition, the vacancy must be located in the same locality.

In the activities of any modern company, it may be necessary to reduce the number or staff of employees, caused by the needs of the business.

In this article, we will focus on some of the nuances that may not be taken into account in the process of offering vacancies, as well as consider controversial issues.

What positions to offer?

The Labor Code prescribes to offer the reduced employee positions that meet the following criteria (Article 81 of the Labor Code of the Russian Federation):

1) the position must be vacant;

2) the work must correspond to the qualifications of the employee or be lower paid (lower position);

3) for health reasons, the employee can perform the proposed work;

4) work must be in the given locality, if the obligation to offer work in another locality is not provided for by the collective agreement, agreements, labor contract.

What is a vacancy?

Unfortunately, there is no consensus on this issue in judicial practice. Thus, the St. Petersburg City Court came to the conclusion that the fact that a new job could be temporary cannot serve as a basis for the absence of its offer to the downsized employee (cassation ruling of the St. Petersburg City Court dated March 15, 2012 No. 33-3894 / 2012 ). Because the Labor Code provides for the obligation of the employer to offer the employee any job and does not indicate whether it should be permanent or temporary.

At the same time, the position of the Moscow Regional Court is different: the court points out that the employer is not obliged to offer temporarily vacant positions, since, within the meaning of the current legislation, they are not vacant (appeal ruling of the Moscow Regional Court of December 20, 2012 No. 33-24613 / 2012 ). In addition, the judges determine the vacancy. In their opinion, a vacant position is a vacant position that is on the staff list, not occupied by anyone and not burdened by the rights of other persons, that is, an employment contract has not been concluded for it at the moment (including with an employee who is on parental leave for a child, and with a part-time partner) (appellate ruling of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012).

How to take into account the qualifications of an employee?

As we have already said, the employer is obliged to offer the reduced employee those positions that correspond to his qualifications or are lower paid and lower.

The Labor Code gives a clear definition of the qualifications of an employee. It is understood as the level of knowledge, skills, professional skills and work experience of an employee (Article 195.1 of the Labor Code of the Russian Federation).

Where to offer positions?

It does not matter if it is a vacancy in another branch or structural subdivisions, since the only criterion is the need to offer all vacancies in the given area.

When and how to offer vacancies?

Opinion

Is the position held by the part-time job vacant?

The law does not contain a definition of the term "vacant position". At the same time, judicial practice adheres to a stable position that a vacant position is one that is not occupied by any employee - the position is indicated in the organization's staffing table, but an employment contract for its replacement has not been concluded with anyone (determinations of the Vologda Regional Court dated May 18, 2011 No. 33 -2323/2011, Rostov Regional Court dated August 15, 2011 No. 33-11141, etc.).

Part-time employment - the performance by an employee of other regular paid work on the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code of the Russian Federation).

This definition does not allow us to consider a part-time position as a vacant one, since an employment contract is concluded with a part-time worker, as well as with a "regular" employee, and the part-time worker has equal rights with a "regular" employee. This position is unanimously adhered to by the courts (determinations of the Moscow City Court dated September 28, 2012 No. 11-2984 / 2012, the St. Petersburg City Court dated July 7, 2011 No. 33-10321, etc.).

Opinion

Temporarily vacant positions as a vacancy

Despite the above nuances of labor relations, the author recommends that employers, in order to avoid unnecessary conflicts, offer the laid-off employee all suitable and temporarily actually unoccupied positions that are not vacancies in the legal sense. A similar opinion is shared by Rostrud (letter of Rostrud dated July 29, 2009 No. 22636-1). He indicates that the employer can offer the dismissed employee the position of an employee who is on parental leave.

Please note that this position will be temporary, not permanent. And the reduced person must be notified in writing about this in order to avoid complications in possible litigation.

Articles in this section

Why should employers regulate the communication of employees in messengers?
Messengers, fortunately or unfortunately, have firmly entered our lives. It seems that sometimes many women are not as afraid of losing their husband as the phone that stores almost your entire life. The main communication has moved to chats: this is convenient, because you can maintain a dialogue at any time. But not only friendship, but also working relationships have passed into messengers. For example, a manager creates a chat with department employees and communicates in it.
How to organize the verification of candidates for microbusinesses without outsourcing?
The efficiency of microbusiness is directly related to high work motivation employees. Therefore, it is so important to correctly select and screen candidates. We tell you how to solve this problem on your own, without resorting to outsourcing personnel specialists.
What do you need to know about hiring teenagers?
Today's youth often start working at school age, wanting to become independent. They go through internships, training and then get a job. What is important to know at the beginning of a career and what risks should employers consider?
Recruitment of teenagers is fraught with many difficulties. Labor law establishes clear requirements that an employer must comply with, but they are often overlooked.
The appearance of an employee at work in a state of intoxication must be correctly proved
Coming to work in a state of intoxication is a seemingly obvious situation that does not require additional evidence. Fortunately, such stories are rare, but perhaps that is why not all HR specialists know exactly how to act correctly. For example, is it possible to use a breathalyzer and allow an employee to enter the company?
Deductions on writ of execution
When receiving a writ of execution for an employee, you need to remember which types of income cannot be levied, take into account the maximum possible percentage of retention on the writ of execution and the sequence of repayment of several writ of execution. …
Geolocation - to protect the interests of employers?
How to effectively supervise regional employees? The question is not idle: they are not under constant supervision, but they are responsible for an important part of the business. This affects labor relations. It is necessary to trust a person, and always know how he works. Alas, freedom of action often leads to irresponsibility, and conflicts to courts.
Facsimile on employment contracts and combination agreements
A facsimile is a cliche, an exact reproduction of a manuscript, document, signature by means of photography and printing. Let's figure out whether it is allowed to use a facsimile instead of a handwritten signature in employment contracts and agreements on additional work.
social tax deduction
A social tax deduction for treatment and training can be granted to an employee upon certain conditions. Consider the features of providing a social tax deduction.
Professional standards will become mandatory in some cases
In connection with the entry into force of amendments to the Labor Code on July 1, 2016 (Federal Law No. 122-FZ of May 2, 2015 (hereinafter referred to as Law No. 122-FZ)) the Ministry of Labor of Russia has prepared answers to standard questions on the application ...
Death of an individual entrepreneur, employee, founder
Can taxes be inherited? Who will make an entry in the work books for the employees of the deceased individual entrepreneur? Are payments accrued after the death of an employee subject to contributions and income tax? What is the procedure in case of death of the director of an LLC or its founder? Read the answers in the article.
Bankruptcy of an employer for wage arrears
Employees have the right to apply to the court to declare the employer bankrupt in cases of non-payment wages. We figure out when an employer may go bankrupt for wage arrears and what employees need to do to start bankruptcy proceedings.
Local regulations of the company - how to avoid liability during inspections
The absence of some local regulations may be regarded by inspectors from the labor inspectorate as a violation of labor legislation. In the article we will tell you how to avoid such consequences.
Substitution of positions and internal combination
The concept of "acting." or "acting" by the current legislation are not established. Therefore, in order to avoid disputes with employees, the employer must know how to properly fill in positions and what is the procedure for paying for it.
Local regulations of the company
The end of the year is the time after the submission of quarterly reports without haste to start preparing for the coming year: think over the staffing table, prepare a vacation schedule for next year. Also, if necessary, make changes to other local regulations.
We make changes to the personal data of an employee
Personal (personal) data of employees are contained mainly in personnel and accounting documents. It is important to follow the sequence of actions when making changes to them.
When and how to conduct a HR audit
Doing personnel document flow in strict accordance with the letter of the law is necessary, since these documents are used not only by the personnel service, but also by the accounting department for calculating wages. They can be checked Labour Inspectorate and tax, employees may need extracts and certificates.
Personnel audit. What documents does your company need to have?
An audit of personnel records management is one of the most important components of the procedure for assessing the effectiveness of the entire personnel management system and human resources organizations or an independent procedure as part of measures to reduce the company's fiscal and reputational risks, including when resolving labor disputes in court.
Organization of HR administration from scratch
The need to set up personnel records management is not such an exotic task, not an easy one for novice personnel officers, private entrepreneurs and accountants, whose duties included personnel management. However, the whole process can be described as a simple step-by-step guide to action.
Work during maternity leave: we analyze possible situations
Often, a young mother, while on parental leave, works part-time or at home.
Some mothers manage to work on the basis of a in due course sick leave during maternity leave, which is not expressly provided for by law. In practice, documenting such a situation raises many questions among personnel officers.
How to make an external part-time worker the main worker
The transition of a part-time worker to the main position in the same company can be formalized through dismissal or through the conclusion of an additional agreement to an employment contract. Filling out the work book depends on when and by whom the entries were made on the hiring of a part-time worker and his dismissal.
Documents to be submitted by the employee
Based on the materials of the reference book "Salary and other payments to employees" edited by V. Vereshchaka Before an employment contract is concluded with an employee, he must submit a number of documents. They are listed in article 65 of the Labor ...
Regulations on wages
The main task this provision is to establish the procedure for remuneration of all categories of employees of the company.
Changing the job title of an employee
If the employer decides to change the name of the position, he must notify the employee working in it. Further actions of the parties to the employment contract depend on the consent of the employee to change the name of the position.
Application of a tariff-free system of remuneration. Features of payroll
This system provides for the distribution of the total payroll for the company (or its division) among the relevant employees. At the same time, the general fund depends on the results of the company (division) in a particular period of time (for example, a month). At its core, the salary of a particular employee is his share in the payroll of the entire team. Wages are distributed among employees on the basis of certain coefficients (for example, labor participation). And there may be several of them.
Calculation of wages with a piecework wage system
We are hiring a driver
When concluding an employment contract with a driver, it is necessary to take into account a number of nuances that are associated with this position. Some of them must be spelled out in the employment contract, for others it is enough to make a reference.
Changes and corrections in the work book
The article was published within the framework of cooperation between the journal "Actual Accounting" and HRMaximum. The employee's work book is the main document that confirms the length of service and gives guarantees for receiving a pension. That is why it is necessary to draw up work books correctly, ...
Storage of documents. Terms of storage, destruction and disposal of primary accounting documents
The procedure and terms of storage of documents of accounting and tax accounting, personnel documents
Orders: form, numbering, corrections
The author focuses in the material on the nuances of issuing orders, making changes to them, etc. Since some errors can lead to the loss of legal force by the order, they cannot be considered trifles.
In what order are copies of documents provided to former employees of the organization?
According to the Rules for the maintenance and storage of work books, approved. Decree of the Government of the Russian Federation of April 16, 2003 N 225 (as amended on May 19, 2008, hereinafter referred to as the Rules), employment history is issued to the employee only upon dismissal, but there are cases when the employee ...
Who is on the staff list... Director of Human Resources, Head of Human Resources, Head of HR?
How to define the functions and powers of the HR director and separate his duties from the duties of other personnel workers, the author tells in a material prepared on the basis of questions from personnel officers
Calculation of work schedules (Program based on Microsoft Excel)
How to staple documents
The article tells about all the nuances of the rules for flashing documents. Readers will learn how to correctly number, compile an inventory, transfer to the archive personnel documents
How to register the absence of an employee if he performs state duties?
Imagine a situation: an employee of the organization is a specialist of a narrow profile and is involved as an expert in the investigative process. Or: a person liable for military service who is in reserve is called up for military training. Or maybe one of your subordinates needs to be present in court as a juror. What are all these cases talking about? The fact that the employee must be released from work for the duration of the performance of state duties and his absence must be formalized in a special way.
Features of labor regulation of employees working for employers-individuals
A number of features has work for employers - individuals. Basically, all employers individuals divided into two groups: individual entrepreneurs and individuals who are not individual entrepreneurs. The former use workers to carry out entrepreneurial activity…
What personnel documents should be in the enterprise
The responsible officer needs to know which documents are mandatory for the company, which become such only under certain conditions, and which papers can be omitted, since they are advisory in nature. This will allow you to prepare well for a meeting with ...
Rights of an employee upon sale of a debtor company
The Federal Law "On Insolvency (Bankruptcy)" does not contain norms that ensure the protection of the labor rights of employees in the event of the sale of a debtor enterprise. The specifics of the resulting labor relations requires special analysis.
Employment confirmation
When calculating the length of service, the periods of work or other activities that are included in it that took place before the registration of a citizen as an insured person in accordance with federal law dated April 1, 1996 “On individual (personalized) accounting ...
How to prepare for the arrival of the labor inspectorate?
Checking the organization of the state labor inspectorate often takes management by surprise. Especially taking into account the fact that, according to the law, a labor inspector has the right to visit the organization at any time of the day and without warning. According to the results of the audit, not only the head of the organization or his deputy, but also the head personnel service and chief accountant.
Notification to the employee: how and in what cases to send
Often in the work of personnel officers, a document such as a notification is used. With the help of this paper, the employer notifies employees of legally significant points. For example, about downsizing. There is no single form of notification. For each case, a different version is developed. We will tell you how to draw up a notice of company reorganization and branch liquidation. How to notify employees about changes in the terms of an employment contract. How to notify an employee of the need to appear for a work book.
Visit of the labor inspectorate
Any employer should be prepared for the fact that sooner or later the labor inspectorate will visit him. Unfortunately, in the current situation, which is characterized by massive layoffs staff, an unexpected visit can happen at any moment. Let's talk about what reason an inspector can come for, what his powers are and what the employer's actions are when carrying out control measures.
Freelance worker: "Dangerous" moments for employer and employee
In the days of the USSR, "freelancers" meant citizens who did work for the organization and were not on the staff. With the development of the legislation of the Russian Federation, the concept and status of a "freelance worker" has changed. The thinking of some of the leaders of organizations remained at the level legal regulation labor of "freelancers" in the USSR. The employer does not always think about the consequences of such relationships.
Is it possible to get rid of the cunning "ballot" legal means? Can. The main thing is to recognize it.
What to do with documents during the liquidation of the organization
Document Preservation Issues joint-stock companies during their liquidation were reflected in the resolution of the Federal Market Commission valuable papers. Let us quote the most important fragments for us.
Office work in the personnel department
Answers of Andreeva Valentina Ivanovna, Professor of the Department of Labor Law Russian Academy justice, to questions about the Documentation of the activities of the personnel service and the vacation schedule in the organization.
Common misconceptions
The most common misconceptions about employment relationships

Before laying off an employee, by law, the employer undertakes to offer him another job that will suit him. One of the criteria for any job is a vacant position.

No clear definition

Many cases are known when difficulties arise in the field of correct interpretation of the law in the sense that it is very important to correctly understand what a vacant position actually is.

To do this, the legislation clearly describes the signs of a vacancy in Moscow, the capitals of the republics, regional and regional centers, throughout the country:

1. This is a job that fully corresponds to the qualifications of the employee being laid off.

2. This position is not lower paid or lower in position.

3. The employee, for health reasons, has the opportunity to perform this work.

4. The job suits the employee by location.

If the job is located in another area, but the employer has the opportunity to offer it to his employee in the order of transfer, this should be provided for by the employment contract or some other agreement.

Responsibilities of the employer in case of layoffs

According to the law, the employer must offer the employee a job that will satisfy him not only in terms of qualifications, but also in accordance with his experience, state of health, suitable for the location. And he must do this even before the termination of the employment contract, and not only due to the reduction of the employee, but also in many other cases, which are also provided for by the Labor Code of the Russian Federation.

Such cases include:

1. If the qualifications, state of health, certification results or experience of the employee do not correspond to the position he currently occupies.

2. If an employee who previously performed this work is reinstated to this vacant position, which can be determined by the labor inspectorate or a court decision.

3. If the employee is disqualified or has received any other administrative punishment, which excludes the possibility for this employee to perform his duties.

4. Other cases.

Vacant position as a free workplace

In practice, very often there are all sorts of disputes over the concept of a vacant position. And this is due to the fact that there is no clear concept of a vacant position, it is not even spelled out in the law. In some cases, only vacant jobs are called vacant positions, that is, those positions that are not occupied by anyone. Some representatives of the law believe that the employer is obliged to offer those positions that remain temporarily vacant due to the absence of the employee at his workplace, even when this workplace kept behind him. In this case, we are talking about the so-called temporary vacancies.

However, this position is not always correct and fair. Those positions that are assigned to temporarily absent employees cannot be vacant. The employer has the right to offer them to his employees in special order translation.

A free workplace, which is available in the staff list, is a vacant position and is. At the same time, a free position is one for the replacement of which an employment contract has not been concluded with any employee. Employers are not required to offer employees a transfer to positions that are temporarily vacant. It follows that they do not bear administrative responsibility for not informing the employees about the existence of such positions. However, in the event of any dispute, the law is first on the side of the employee, especially since such situations are not provided for in the law.

Can't be fired

Dismissal is possible only in cases where it is impossible to employ an employee, i.e. there is no free vacant position. If he is transferred to a position that is reserved for another employee, this means that the employer does not fulfill its obligations to employ the employee, but only provides him with a temporary position, transfer to which on a permanent basis is impossible, because after the conclusion of the employment contract, changing it deadlines is illegal.

In cases where the employer still decides to appoint an employee to a temporary position, there are two options for the further development of events. The first one is when the employer transfers an employee to a position that is not vacant, and when the period for his temporary transfer to this position expires, he dismisses him on a reduction, because his position has been reduced, and the employer cannot offer him another. The second option is when the employer terminates the employment contract with the employee, after which he draws it up according to fixed-term contract. At the same time, he determines for a position that is listed for another employee who is on parental leave.

Combination of posts

Some legislative sources indicate that the employer is obliged to offer as a vacant position the work that is performed by a part-time job. The same is confirmed judicial practice. Some judges believe that the dismissed employee must be offered only those job positions that are not filled, and selection for vacant positions in such cases is not appropriate. And only such a position can be considered free, which, under an employment contract, is not replaced by anyone. If the employee works on the terms of combining positions, such a position should not be considered vacant.

What does the Labor Code say about combining jobs?

A somewhat simplified procedure for combining positions is provided for, and there is also one condition here - to warn about this in writing within three working days. In cases where an employee works half-time, the other half remains vacant, which means that the employee should be offered such a job. Judicial practice also proves the existence of such a rule.

According to some provisions of the Labor Code, which speaks of the legislative understanding of the concept of vacancy in Moscow, federal cities and in all constituent entities of the Russian Federation, if the employee has given written consent, then along with the main job, which is defined by the employment contract, he may be asked to perform additional work in accordance with his profession and skills, and this is paid, as a rule, additionally.

When combining positions, the conclusion of an employment contract is not required, which distinguishes such cases from those when the employee performs part-time work. When combining positions, he occupies a single position, but the combined position in which he performs his duties remains vacant. In this case, employees working on a combination of positions receive additional payment labor.

The procedure for granting a vacant position to an employee

For each employee who is going to be laid off by the employer in his position, it would be advisable to make a list of the availability of vacancies that will suit him, individually. Such a list should indicate all the basic requirements for his work experience, qualifications, size and features of the proposed work. If he is offered positions that are temporarily vacant, this must be indicated in this list, along with the reason why this position is temporarily not occupied by anyone.

The procedure for notifying an applicant for a vacant position about available vacancies

There are several options here:

1. The employer notifies the employee once during the termination of the employment contract.

2. During the entire period of organizing regular events, the list of vacant positions is periodically updated until the employee decides to transfer to one of them.

3. The employee should be notified twice - at the time of delivery of a notice of the planned staff reduction and at the termination of the employment contract.

List of vacancies

The employer independently decides in what order and how many times to acquaint the employee with the list of vacancies. However, it should be borne in mind that one delivery of a notice of transfer to another position is not enough, because during the time the employee receives such a notice, the number of vacant positions may change significantly. If any new positions become vacant, they must also be offered to the employee being laid off. The main thing in this case is that the employer can confirm that at the time of the employee's dismissal, his transfer to another position was impossible, since the employee refused all the vacancies offered to him. If the employer has repeatedly offered the employee other vacancies, then he can transfer him to another position without waiting for the warning period to expire.

The employer is obliged to say that the vacant positions are those that are now free and offer them, otherwise the transfer may be recognized as forced by the court, which means that illegal actions may be committed on the part of the employer.

If a vacant position suits several dismissed employees at once, but there is only one, then in this case the employer can independently decide to whom to offer this job, and first it is offered to the employee for whom it suits the most. And only if that employee refuses to transfer to this position, it is offered to everyone else.

Competition for vacancies

The Labor Code of the Russian Federation states that one of the grounds for concluding an employment contract is the election of an appropriate position on the basis of a competition. Identical information can also be seen in the regulation on the competition for filling a vacant position or in the Decree of the President of the Russian Federation. This competition is carried out in order to fully assess the professional level of all candidates for a vacant position, as well as their compliance with all the basic requirements for the position.

Who is eligible to participate in the competition?

Also, the Labor Code clearly defines all categories of employees who have the right to participate in the competition for filling vacant positions. public service. There are only three such categories - these are municipal employees, scientific and pedagogical specialists of higher educational institutions and government civil servants. When it comes to other institutions, the procedure for concluding employment contracts may be provided for by other legislative acts of a more local nature, for example, regulations and charters.

In addition, the Labor Code establishes special requirements that must be observed when drawing up an employment contract as a result of the election of a candidate through a competition.

Entering the civil service

The legislation establishes the following requirements for an employee participating in the competition for filling vacancies in the civil service and applying for a job in the manner of the above selection:

1. The employee must be a citizen of the Russian Federation.

2. The age of the employee is at least 18 years old, that is, he must be of legal age, and this is the main sign that he can fully fulfill his duties as a citizen of the Russian Federation.

3. An employee must be proficient in the state language.

4. Taking part in the competition for filling a vacant position and possibly future employee public service must comply with all qualification requirements. Some positions require you to have higher education, in other cases it is not necessary, so all the nuances must be carefully checked and taken into account.

Within a few working days, all applications received from candidates for the position are sent to the representative of the organization and all participants in the competition. A special competition commission selects one of them and makes a decision on the conclusion of an employment contract. Other candidates are eligible to be included in personnel reserve organizations.

Vacancy or position. Staffing from a to z. Vacation pay needs to be indexed if the salaries of the entire state have increased

staffing: we solve emergency situations

Employees do not need to be familiarized with the staffing table

The staff list is kept by the one who is responsible for it.

In the staffing table, you can enter positions that are temporarily replaced

Choose the way to change the staffing

ORDER No. 13-5 on salary increases and staffing arrangements

I ORDER:

Only a vacant position can be deleted from the staff list

EXPLAINING TO THE MANAGER

Vacation pay needs to be indexed if the salaries of the entire state have increased

There may be vacancies in the staffing table

The full salary is included in the staffing table.

There can be no different salaries for the same positions.

WE REMIND THE MANAGER

Articles in this section

No clear definition

Responsibilities of the employer in case of layoffs

Vacant position as a free workplace

Can't be fired

Combination of posts

What does the Labor Code say about combining jobs?

The procedure for granting a vacant position to an employee

The procedure for notifying an applicant for a vacant position about available vacancies

List of vacancies

Competition for vacancies

Who is eligible to participate in the competition?

Entering the civil service

ORDER No. 13-5
on salary increases and staffing arrangements