74 Article TC RF in the examples. Changes in essential working conditions
Rules for the transfer of an employee to another work due to changes in working conditions
Adjustment of the conditions established when concluding an employment agreement between the employee and the employer of the time: changes in the economy and technology, in the right and social sphere, inevitably affect labor relations. To comply with their interests and achieve certain goals in new circumstances, the employer is forced to change the conditions of employment contracts agreed with employees.
The right to revise the conditions of the employment contract as a response to a serious change in the external (social, economic, legal) or internal (resource-technological) environment. The legislator recognized and during the action of the LDGC of the Russian Federation in modern conditions for the establishment of a market recognition for the employer of the right to make a decision on changing certain parties in The course of negotiations the conditions of the employment contract is objectively necessary to ensure the continuity of the employer's activities and its development.
However, to prevent unreasonable infringement of labor rights of workers and to avoid abuse by the employer, the legislator put forward a number of conditions in the Labor Code of the Russian Federation that the employer must be met in the labor code of the Russian Federation. Consider them in detail.
The procedure for changing the conditions of employment contracts
According to the first part of Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), defined by the parties, the working contract can not be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee.
Clarified in accordance with Federal Law of 30.06.2006 N 90-FZ "On Amendments to the Labor Code of the Russian Federation, recognition of certain regulatory legal acts of the USSR in the Russian Federation and invalid the strength of some legislative acts (provisions of legislative acts) of the Russian Federation" Regulatory provision that determines the conditions for translation at the initiative of the employer, thanks to the examples of organizational or technological changes in labor conditions, of course, will reduce disputes as to whether the planned changes are sufficient grounds for changing the conditions of the employment contract, but it does not excel completely: we believe that, as well as before, workers, state labor inspectors and judges will affect the decisions of the employer to adjust labor relations, since technological changes are not exhausted by changes in the technique and production technology, and organizational structural reorganization .
Plenum of the Supreme Court of the Russian Federation in his decision of 17.03.2004 N 2 "On the application of the courts of the Russian Federation of the Russian Federation of the Russian Federation" complements the examples of changes in the organizational and technological conditions of labor in such a change in the courts of the Russian Federation 74 of the Labor Code of the Russian Federation, such as improving jobs based on their certification.
In our opinion, the list of technological changes can be complemented by such changes as the reconstruction of production, the introduction of a new production (technological) equipment, the introduction of new technological processes, changing the rules of operation of equipment, etc. As organizational, in particular, one can consider such changes as Introduction of new labor modes (for example, multi-work work), changing the wage system, laboring systems, redistribution of tasks and areas of responsibility between structural units, etc.
The fundamental difference between the former editorial board of the first article 73 and the current version of the first part of Article 74 of the Labor Code of the Russian Federation, regulating labor relations in organizational or technological changes in working conditions, and the editors of paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation lies in the fact that since October 2006 The employer may change any condition of the employment contract defined by the parties, regardless of its importance for the parties, that is, without taking into account "materiality". Thus, at the current legal regulation, it does not matter, which is mandatory (by virtue of the second part of Article 57 of the Labor Code of the Russian Federation) or additional (by virtue of the part of the fourth Article 57 of the Labor Code of the Russian Federation), key or secondary. The only condition that the employer cannot change, referring to organizational or technological changes, is a labor function. Recall that in accordance with part of the second article 57 of the Labor Code of the Russian Federation under labor functionality is understood as work as a position in accordance with the staffing, profession, specialty, indicating the qualifications; Specific view of an ordered employee of work. Thus, whatever changes in the organizational or technological plan have planned the employer, the names of posts, professions, specialties and their supporting labor duties should remain unchanged.
The remaining conditions of employment contract defined by the parties can be changed. The terms of employment contract, which in practice are most often affected by organizational or technological restructures include:
1) The condition about the place of work (usually its change is expressed in changing the structural unit in which the employee performs work). And in the context of creating the legislator for internal labor migration (due to the ban on establishing direct or indirect advantages when concluding an employment contract, depending on the place of residence (including the presence or absence of registration at the place of residence or stay)), we believe that employers and employees Increasingly, they will come to an agreement on changing the location of their work (for example, by transferring from one separate structural unit, located in one area (including administrative-territorial division), to another located in another area). However, the most common is still a change in the place of work defined by an anticipated (functional) structural unit (workshop, department, etc.);
2) the wage conditions (mainly the size of the tariff rate or salary (salary) of the employee, the types and size of additional payments, premiums and incentive payments);
3) working time and rest time (if it is established for this employee specifically due to the fact that it differs from the general rules operating in this employer);
4) additional compensation-established compensation for heavy work and work with harmful and (or) hazardous working conditions, if the employee is accepted under the appropriate conditions;
5) Conditions defining the nature of the work (mobile, traveling, on the way, another nature of work).
With a new legal regulation, it should also be assumed that the employer, guided by parts of the first third article 74 of the Labor Code of the Russian Federation, may have an interest in changing the terms of the employment contract (and as towards the increase (that is, extensions) and towards the reduction ( That is, reductions, however, within the overall period).
Organizational or technological conditions in principle may cause a change in the so-called additional conditions of the employment contract. For example:
1) conditions on non-disclosure of secrets protected by law - state, official, commercial and other (in particular, due to the termination of the employer's work related to the law protected by the law);
2) the conditions for the duty to work out after studying an equally established period of the term, if the training was conducted at the expense of the employer (in particular, in the case when the employer, by virtue of organizational (financial) changes, ceases to pay for employee training);
3) conditions on the types and procedures for additional insurance of the employee (in particular, due to the revision of insurance programs as a result of a change in the wage system and social package);
4) on the improvement of the social and living conditions of the employee and his family members (they are mainly changing to the above reasons due to the revision of wage and corporate social package systems in general).
Such conditions of employment contract may not be changed, as a condition for the obligatory social insurance of the employee, the types and sizes of compensation for heavy work and work with harmful and (or) hazardous working conditions (if the employee performs its work function under the specified conditions), since they The derivatives are established in accordance with the Labor Code of the Russian Federation, other federal laws and regulatory legal acts. Recall that due to the part of the second article 9 of the Labor Code of the Russian Federation, employment contracts cannot contain conditions that limit the rights or reducing the level of guarantees of workers compared with established labor laws and other regulatory legal acts containing labor law norms; If such conditions are included in the employment contract, they are not subject to use.
In the considered aspect we consider it necessary to especially noted that in practice, employers most often forget about the demand formulated by the legislator in part of the Eighth Article 74 of the Labor Code of the Russian Federation (in the previous edition of the Code in terms of the eighth of its article 73), namely, the fact that changes determined by the parties The conditions of the employment contract introduced in connection with the change in organizational or technological conditions of labor should not worsen the position of the employee compared with the established collective agreement, agreements. If the need for organizational or technological changes is essential and inevitable and such changes cannot be made without deteriorating the conditions of employment contracts compared with the established collective agreement, the employer must first make changes to the collective agreement and only then proceed to the procedures provided for in Article 74 of Labor Code of the Russian Federation
In the event that the planned by the employer changes lead to a deterioration in the provision of the employee compared with the established agreement, the employer cannot affect the situation at all, unless there is actions, as a result of which the relevant agreement will not be applied to it.
Since employees demonstrate increasing legal preparedness in the protection of their labor rights, we consider it necessary to especially pay the attention of employers to actions to change employment contracts in the conditions of the relevant agreement.
Still a significant part of the employers believes that those documents in the field of labor that they have not been signed, do not apply to them and are not mandatory for execution. This is a delusion that can cause the employer to attract the employer to responsibility and disputes with employees.
According to parts of the third and fourth Article 48 of the Labor Code of the Russian Federation, an agreement (that is, in accordance with part of the first article 45 of the Codex of the legal act, regulating social and labor relations and establishing general principles of regulation of economic relations related to them, concluded between the authorized representatives of employees and employers on the federal , interregional, regional, sectoral (intersectoral) and territorial levels of social partnership within their competence) is valid for:
1) all employers who are members of the union of employers who concluded an agreement. The termination of membership in the union of employers does not exempt the employer from the implementation of the agreement concluded during its membership. The employer who joined the union of employers during the period of the Agreement is obliged to fulfill the obligations provided for by this Agreement;
2) employers who are not members of the union of employers who have entered into an agreement that authorized the specified association from their behalf to participate in collective bargaining and conclude an agreement or joined the agreement after its conclusion;
3) state authorities and local government bodies within obligations made by them.
In relation to employers of federal government agencies, government agencies of the constituent entities of the Russian Federation, municipal institutions and other organizations funded from the relevant budgets, the Agreement also acts in the case when it is concluded on their behalf by the relevant authority of state authority or local self-government authority.
By virtue of the part of the seventh article 48 of the Labor Code of the Russian Federation at the proposal of the parties to the industry-prisoner in the federal level of the sectoral agreement, the head of the federal executive body, performing the function of developing public policy and regulatory regulation in the field of labor (in the current legal situation is the Minister of Health and Social Development of the Russian Federation ), has the right after the publication of the agreement to offer employers who did not participate in the conclusion of this agreement to join this agreement. This proposal is subject to official publication in the Russian Gazette (in accordance with the procedure for publishing prisoners at the federal level of sectoral agreements and proposals for joining the agreement, approved by the Order of the Ministry of Health and Social Development of Russia dated 12.04.2007 N 260) and should contain information on the registration of the Agreement and the source his publication (the official source of the Agreement is the Journal of Labor and Insurance; In addition, the text of the Agreement should be placed on the official website of the Ministry of Health and Social Development of Russia (www.mzsrrf.ru. ). If employers operating in the relevant industry, within 30 calendar days from the date of the official publication of the proposal to join the agreement did not submit to the federal executive body, performing functions to develop public policy and regulatory labor regulation, motivated written refusal to join To it, then in accordance with Part Eight of Article 48 of the Labor Code of the Russian Federation, the Agreement is considered to be common on these employers from the date of the official publication of the proposal. Thus, only if the employer takes actions to "withdraw" himself from under the action of the relevant agreement, it may assume that neither its employees do not apply to the obligations assigned to the employers to the specified agreement. At the same time, these actions should be very active and decisive. In particular, due to the norm under consideration, the employer should attach the protocol of its consultations with the elected body of the Primary Trade Union Organization, which unites the employees of this employer. However, the directions of these documents may not be enough in order to achieve non-proliferation of the actions of the relevant agreement. Part Ninth Article 48 of the Labor Code of the Russian Federation provides that in the event of a refusal of the employer, the Minister of Health and Social Development of the Russian Federation has the right to invite representatives of this employer and representatives of the elected body of the Primary Trade Union Organization, uniting the employees of this employer, for consultations with the participation of representatives of the Parties to the Agreement ; At the same time, representatives of the employer, representatives of employees and representatives of the parties to the Agreement are obliged to take part in these consultations under the threat of administrative responsibility in accordance with Articles 5.28 and 5.30 of the Russian Code of Administrative Offenses.
Finally, one more thing should be noted: due to the parts of the fifth and sixth of Article 48 of the Labor Code of the Russian Federation, the Agreement has been operating in relation to all employees in labor relations with employers on which the Agreement applies; In cases where several agreements operate in relation to workers, the terms of agreements are applied, the most favorable for workers.
Thus, before the employer, the changes will begin to change the conditions of employment contracts in the manner determined by Article 74 of the Labor Code of the Russian Federation, it needs to be established whether the relevant agreement is applied to it, and if it extends, to compare its provisions with the planned provisions Changes in the conditions of employment contracts. In case of deterioration of the situation of employees compared with this agreement, the employer should refuse to be planned or adjusted to ensure that part of the Eighth Article 74 of the Labor Code of the Russian Federation
To confirm the severity of the said we consider it necessary to draw the attention of employers to how important the norm of the Eighth Article 74 of the Labor Code of the Russian Federation is: Plenum of the Supreme Court of the Russian Federation, giving clarification courts to apply the Labor Code of the Russian Federation in the aforementioned decision of 17.03.2004 N 2, especially recommended by the courts When considering the case on the restoration of persons, the employment contract with which it was discontinued under paragraph 7 of the first part of Article 77 of the Code (the refusal to continue work in connection with the change in the conditions of the work of the employment contract), or on the recognition of the challenges of the employment contract defined by the parties The continuation of the employee of the work without changing the labor function (Article 74 of the Labor Code of the Russian Federation) to take into account that, on the basis of Article 56 of the Civil Procedure Code of the Russian Federation, the employer must, in particular, provide evidence confirming that the change in the conditions of the employment contract defined by the parties:
a) was a consequence of changes in organizational or technological conditions of labor, such as changes in the technique and technology of production, improving jobs based on their certification, structural reorganization of production;
b) did not deteriorate the position of the employee compared with the terms of the collective agreement, the agreement.
In the absence of such evidence, the termination of the employment contract under paragraph 7 of the first part of Article 77 of the Code or the change in the conditions determined by the parties of the employment contract in accordance with Article 74 of the Code, according to the clarification of the Plenum of the Supreme Court of the Russian Federation, cannot be recognized legal.
In practice, the following condition, whose observance checks (in addition to those listed in paragraphs "A" and B "), is the employer's fulfillment of the obligation to notice in the written form of workers, the employment contracts of which are planned to be revised, on the upcoming changes to the working contracts defined by the parties . In accordance with part of the second article 74 of the Labor Code of the Russian Federation on the upcoming changes to the conditions defined by the Terms of employment, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than 2 months, unless otherwise provided by this Code .
The deadlines for notification of the employee are determined by the rules set forth in Article 14 of the Labor Code of the Russian Federation, according to which:
a) the course of the deadlines with which this code binds the occurrence of labor rights and obligations, begins with the calendar date, which determined the beginning of the occurrence of these rights and obligations;
b) deadlines calculated by months, expire to the corresponding number of the last month of the term;
c) on time calculated in calendar days, turn on and non-working days;
d) If the last day of the term falls on a non-working day, then the end of the deadline is considered the nearest working day behind him.
Analyzing the content of part of the second article 74 of the Labor Code of the Russian Federation, it is necessary to draw the attention of employers to the novel: if in accordance with the same version of Article 73 of the Labor Code of the Russian Federation, the employer was obliged to inform the employee only about the upcoming changes in the conditions of the employment contract, then in accordance with the norms of Article 74 of the Code, The statement described in the new edition, now it is also obliged to bring to the attention of the employee of the causes that caused the need to change the conditions of employment contracts.
Since the content of such notifications at the regulatory level is not established, the employer determines it independently. Taking into account the notification form, it is necessary to include the following provisions:
a) about the reasons that caused the need to change the conditions for a particular employment contract;
b) on the conditions of employment contracts that are subject to change, and the content of these changes;
c) about the deadline for the introduction of planned changes in the conditions of the employment contract;
d) about the period during which the employee must decide on the continuation of work in new conditions or its termination.
Based on practice, we will also recommend employers to include a provision on the obligation of written expression by the employee of its decision regarding the upcoming changes (it is desirable to suggest an employee that such a decision may be outlined by him directly in the notification (if the form provides for a place to express your will to the employee) or In a separate document (for example, in a statement)). Quite convenient are forms of notifications consisting of several divided parts, one of which is intended to express its decision by the employee.
In small organizations notice, employees are signed directly by the head of the organization. In organizations in which personnel services are formed, or with a state of over 100 people, these features by order (ordered) of the head of the organization are delegated to the Deputy Head of the Organization for Human Resources or the Head of Personnel Service (HR Manager).
It should be noted that, in contrast to other changes in the conditions of employment contracts, for example, caused by the reduction in staff or the number of employees, the legislator did not require the notification of employees about the upcoming changes in the conditions of employment contracts in the manner specified by Article 74 of the Labor Code of the Russian Federation, under the painting (as it, For example, in part of the second article 180 of the Labor Code of the Russian Federation). At first glance, it simplifies the work of the personnel service, since it is not required to receive written confirmation of the fact that the notification worker is not required. However, as the practice is evidenced, the lack of an employee's painting confirming the fact of the notice of the forthcoming changes in the conditions of employment, in the event of disputes regarding the legality of the dismissal under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation, is interpreted in favor of the employee.
In order to avoid misunderstandings and disputes with employees, the notice must be made in two copies, one of which should be issued to the employee under the painting, the second remaining in the personnel service. In the event that, in accordance with the form of notification, the employee must express his decision directly in the notification (in a specially reserved place), an instance issued by the employee must return to the personnel service.
If the system of office work in an organization provides that the decision of the employee about the upcoming changes should be expressed in a separate document, the personnel service is advisable to develop a stencil (unified) application form or make an exemplary sample, which the employee will be guided by drawing up its application. At the same time, it is extremely desirable that the employee can be established from the statement to establish, with what changes the working contract conditions agreed or the worker did not agree.
If the employee refuses to affix his painting in the notification of the upcoming changes, the personnel service should be compiled a corresponding act.
In the case of the consent of the employee to continue working in the new conditions, the Parties must sign an agreement on the change of employment contract. On his basis, the personnel service is preparing an order (order) on the change in the working contract defined by the parties.
If an employee fails to continue working in the new conditions, the employer, guided by part of the third article 74 of the Labor Code of the Russian Federation, is obliged to offer him another employer to him (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) which the employee can perform according to his health status. At the same time, the employer is obliged to offer an employee all meets the specified vacancies available in this area; Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract.
Due to the fact that the proposal procedure for the employee of another work is not regulated in time, in practice there are difficulties with the determination of the number of proposals and deadlines, during which the employee may be proposed to transfer to another job. We believe that the employer may try to manage these terms, establishing an employee time to express its decision both relative to new working conditions and relative to the proposed work. The employer can also put forward a proposal for translating simultaneously with the notification, that is, without waiting for the decision of the employee regarding the upcoming changes.
The employer may be passive: notifying the employee about the upcoming changes, he can expect an employee's decision until the end of the allotted period and, only if the employee refuses to continue working in new conditions, make it a proposal for a new job.
In most organizations, the offer to the employee of another work is made in the form of a separate document. This document provides the name of the post (profession, specialty), which is proposed to the employee, lists the main of the new conditions of the employment contract and the period is indicated during which the employee must express his attitude to the translation. If the employer can offer an employee several posts (professions, specialties), then they are indicated in the proposal with a note that the right to choose a position (profession, specialty) is provided to an employee.
If the personnel service is ready to offer an employee to transfer to another job at the time of deciding on changes in the conditions of employment contract, the list of positions offered or professions can be given directly in the notification of the upcoming changes. However, including the text of the notice of the introduction of changes in the working conditions, the notice of the absence of vacancies and the proposal of the new work should be remembered that the situation may change, and vacant positions or places and places that have been able to expire to the expiration of the forthcoming changes in the organization.
If the employee expresses a refusal to continue working in connection with the change in the working contract defined by the parties in the manner set out in part of the fourth article 74 of the Labor Code of the Russian Federation (including from transfer to another work), the employer has the right to terminate the employment contract under paragraph 7 of the first part of the first Article 77 of the Labor Code of the Russian Federation should be noted the incomprehension of part of the fourth article 74 of the Codex and paragraph 7 of the first part of Article 77 of the Code: The first rule provides that the employment contract is terminated in the event of a lack of work, the transfer to which the employee could be proposed, or in the event of an employee's refusal The proposed work, and the second that the employment contract is terminated in the event of a refusal of the employee from continuing work in connection with the change in the working contract defined by the parties. However, it does not change the creature of changes in legal relations, since in part of the fourth article 74 of the Labor Code of the Russian Federation, the investigations of the real reason for changing the labor relations disagreement of the employee to work in new conditions.
When dismissal due to the refusal of the employee from the continuation of work in connection with the change in the working contract defined by the parties (paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation), it is paid to him in accordance with a part of the third article 178 of the Labor Code of the Russian Federation a daytime allowance in the amount of a 2-week average earnings .
With the consent of the employee, the transfer of the personnel service is preparing projects of an additional agreement to the employment contract, which reflects the changes stipulated by the parties, as well as the order (orders) on transfer to another work on the unified form N T-5, approved by the Resolution of the State Statistics Committee of Russia from January 05/2004 N 1. After signing the parties to the Agreement, the head of the Organization or other authorized person signs the named Order (order), on the basis of which the corresponding entry is made to the employment record.
D.L. Shchur, L.V. Shchur-Trukhanovich
Shchur D.L., Head of the Legal Department of the Publishing and Advice Center "Case and Service".
Shchur-Trukhanovich L.V., Specialist in Labor Law and Labor Economics, Ph.D.
In the case when for reasons associated with a change in the organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), the conditions defined by the parties cannot be preserved, their change is allowed on the initiative of the employer, with the exception Changes in the employment of the employee.
On the upcoming changes to the conditions of employment contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months, unless otherwise provided for by this Code.
If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract.
In the absence of the specified work or 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 a massive dismissal of employees, the employer in order to preserve jobs has the right to consider the opinion of the elected body of the Primary Trade Union Organization and in the manner established by Article 372 of this Code to take local regulatory acts , enter the incomplete working day (shift) and (or) part-time working week for up to six months.
If the employee refuses to continue working in a part-time work day (shift) and (or) of an incomplete working week, the employment contract is terminated in accordance with paragraph 2 of the part of the first Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.
Cancellation of an incomplete working day (change) and (or) part-time working week was previously the deadline for which they were established, is made by the employer, taking into account the opinion of the elected body of the primary trade union organization.
The changes in the conditions defined by the parties of the working contract envisaged in accordance with this article should not degrade the position of the employee compared with the established collective agreement, agreements.
Commentary on Article 74 of the Labor Code of the Russian Federation
1. The employer has the right to change unilaterally the conditions of the employment contract if there is a combination of the following conditions: 1) there have been changes in organizational or technological conditions of labor, i.e. There are changes to the technique and production technology, etc.; 2) In connection with this, the former conditions of the employment contract cannot be saved; 3) changes in the conditions of the employment contract do not concern: professions, specialty, positions, qualifications, specific type of entrusted work; 4) The employee is notified by the employer in writing no later than 2 months. On the upcoming change in the conditions of the employment contract; 5) the employee named the reasons for changing the conditions of the employment contract; 6) Changes in the conditions of the employment contract do not worsen the position of the employee compared with the collective agreement, agreements.
2. If the employee does not agree to the change in the terms of the employment contract, the employer is obliged to offer him another vacant work in writing. If the employee agrees to fulfill another work, then appropriate changes in conditions are made to its employment agreement.
3. The employer is obliged to offer vacancies in other areas, if it is provided for by a collective agreement, agreements, an employment 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 TC.
5. When introducing a part-time working day (change) and (or) part-time working week, as well as during the suspension of production, the employer is obliged to inform the employment bodies within 3 working days after deciding on the implementation of relevant events ( . 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On Employment of the Population in the Russian Federation").
[Labor Code of the Russian Federation] [Chapter 12] ✍ Read comment on the articleIn the case when for reasons associated with a change in the organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), the conditions defined by the parties cannot be preserved, their change is allowed on the initiative of the employer, with the exception Changes in the employment of the employee. On the upcoming changes to the conditions of employment contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months, unless otherwise provided for by this Code. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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 case when the reasons specified in the first part of this article may entail a massive dismissal of employees, the employer in order to preserve jobs has the right to consider the opinion of the elected body of the Primary Trade Union Organization and in the manner established by Article 372 of this Code to take local regulatory Acts, introduce the regime of an incomplete working day (shift) and (or) part-time working week for up to six months. If the employee refuses to continue working in a part-time work day (shift) and (or) of an incomplete working week, the employment contract is terminated in accordance with paragraph 2 of the part of the first Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation. Cancellation of an incomplete working day (change) and (or) part-time working week was previously the deadline for which they were established, is made by the employer, taking into account the opinion of the elected body of the primary trade union organization. The changes in the conditions defined by the parties of the working contract envisaged in accordance with this article should not degrade the position of the employee compared with the established collective agreement, agreements.
Counseling lawyer under Art. 74 TC RF
The answer to the question is given by phone
The answer to the question is given by phone
The answer to the question is given by phone
- Lawyer's answer:
I understand that you have a change in shifts? And the employer changes the shift schedule? If so, it is obliged to warn about changing the schedule of shift for 1 month (. If we are talking about work schedule for the whole team (i.e. it was "working from 8-00 to 17-00", and it became Until 19-00 "), this is considered to be a change in working conditions. About such a change, in principle, should warn in 2 months (Article 74 of the Labor Code).
- Lawyer's answer:
Kristina Denisova
The employer notified the reduction of working hours. Accordingly, it will decrease without a small salary .. is it legitimate? I do not agree to cut salary. How to do it? What are my rights? Finding another job is not a way out.
- Lawyer's answer:
The introduction of an incomplete working time mode on the employer initiative is permissible only in the case provided for in Article 74 of the Labor Code. Namely, if there are changes in organizational or technological conditions of labor, and these reasons may entail the massive dismissal of workers. The period for which a reduction in the regime on the employer initiative is allowed is strictly limited - it cannot exceed 6 months. On the upcoming changes in the working contract conditions, the employer is obliged to notify employees. In addition, you need to report about the reasons that caused the need to change. The consent of the employee in this case is not required, it is only necessary to get a signature that the worker is familiar with the upcoming changes. But the failure must be in writing. The employee has the right to disagree at part-time. In this case, it is employed in writing in writing to offer a subordinate other, the work that the employee will be able to carry out the state of his health, including a subordinate position or the following job (Article 74 of the Labor Code of the Russian Federation). If there is no free vacancies or employee refuses to proposals, the employment contract with it is terminated in accordance with paragraph 7 of Part 1 of Article 77 of the Labor Code - the worker's refusal from continuing to work in connection with the change in the Terms of Labor Conditions.
- Lawyer's answer:
- Lawyer's answer:
"Salary" as you expressed, is one of the essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation). In accordance with Article 72 of the Labor Code of the Russian Federation, it is allowed only by agreement of the parties to the employment contract. Who of the working pensioners will voluntarily agree to a decrease in the "salary"? Also, as well as on the "normal" workers, the guarantees of labor legislation of the Russian Federation are applied. Otherwise - discrimination. However, the owner is a barin. This is me about the employer. It can, to optimize the execution of statutory goals and tasks, overlap the staffing schedule, including "salaries". In accordance with Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the Terms of the Labor Contract, cannot be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee. On the upcoming changes to the conditions of employment contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months, unless otherwise provided for by this Code. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. At the same time, the employee in accordance with Part 3 of Art. 178 Labor Code of the Russian Federation
- Lawyer's answer:
The Labor Code of the Russian Federation does not prohibit establishing different salaries to employees who occupy the same position. It was said that the salary should depend on the qualifications of the employee, the complexity of the work performed by him and the quality of labor (Article 132 of the Labor Code of the Russian Federation Art. 132 of the TC RFT. 135 of the Labor Code of the Russian Federation). It may be allowed for work experience, education (including knowledge of the language), the volume of work done, etc. In this case, the employer does not limit anything. The criteria for employees are relying the allowances must be written in detail in a collective agreement or other local document. The size of the salary is prescribed in the labor contract as its prerequisite (para. 5, Article 57, Art. 135 of the Labor Code of the Russian Federation). To change the mandatory conditions of the employment contract (including and salaries), as a general rule, the organization can only with the consent of the employee (Art. 72 of the Labor Code of the Russian Federation). In this case, it is necessary to issue an additional agreement to the employment contract and the order of the head of the change in the standard schedule. In some cases, the organization has the right to make changes to the conditions of employment contract without consent. This is allowed when the previous conditions (including the salary size) cannot be saved due to: - changes in the technique and production technology (for example, the introduction of new equipment, which led to a reduction in the employee's load); - structural reorganization of production (for example, the exclusion of any stage of the production process); - other changes in the organizational or technological working conditions, which led to a decrease in the employee's load. It is forbidden to change the employee's labor function. In addition, the organization can reduce the salary not lower than the level established by the collective agreement (agreement) if the collective agreement (agreement) contains the relevant conditions. This is told in parts 1 and 8 of Article 74 of the Labor Code of the Russian Federation. Therefore, if such discredit is undergoing, it is necessary to fight, but not alone, but to all. Write to the tax to whom the organization is being subordinate to the trade union.
- Lawyer's answer:
Write at least about it: the salary of the employee who has spent over the month of time and fulfilling the norm of labor (labor duties) should not be less than the minimum wage (minimum wage). Since June 1, 2011, the minimum wage is 4611 rubles. per month. Previously, the minimum wage was equal to 4330 rubles. , i.e. he rose by 281 rubles. This is the first change in the minimum wage after January 1, 2009 in its regions, regional minimum salary agreements, the executive authorities of the constituent entities of the Russian Federation have the right to establish another value that may be more federal (Article 133.1 of the Labor Code of the Russian Federation). The salary (wage) includes the following elements: - Remuneration for work; -Compensitive payments (for example, surcharge and surcharges for work in conditions deviating from normal, work in special climatic conditions, etc.); - stimulating payments (premiums and other incentive payments). This is stated in part 1 of Article 129 of the Labor Code of the Russian Federation. The amount of the subsistence minimum in the country is quarterly established by the Government of the Russian Federation. So, at the first quarter of 2011, the subsistence minimum was installed in the following sizes: - per capita - 6473 rubles. ; - for the working-age population - 6986 rubles. ; - for pensioners - 5122 rubles. ; - For children - 6265 rubles. Such data is defined by the Decree of the Government of the Russian Federation of June 14, 2011 No. 465. Separately, for each region, the existence minimum define the executive authorities. You can find out its magnitude, for example, from the official press or on the sites of the appropriate subject of the Russian Federation. Such an order follows from article 133 of the Labor Code of the Russian Federation and Articles 4 and 7 of the Law of October 24, 1997 No. 134-FZ. The Labor Code of the Russian Federation does not prohibit establishing different salaries to employees who occupy the same position. It is said that the salary should depend on the qualifications of the employee, the complexity of the work performed and the quality of work (Art. 132 of the Labor Code of the Russian Federation). However, personal settlement of salaries cannot be arbitrary (resolution of the Presidium of the Supreme Court of the Russian Federation of August 31, 1994). Therefore, if the organization establishes different salaries to the staff engaged in the same positions, in job descriptions should establish different responsibilities for them. And in the staffing schedule to provide various categories of posts. For example, to introduce positions: Accountant for salary accounting, accountant for taking into account fixed assets, seller, senior seller, etc. Pay for employees. Different amounts can not changing the amount of the salary. That is, the salary remains the same for all employees who occupy the same position (Art. 22, Part 2 of Art. 132 TK RF). But in general, the salary of employees in one position can be different, since it depends, including from allowances and premiums (Art. 135 of the Labor Code of the Russian Federation). In some cases, the organization has the right to make changes to the conditions of employment contract without consent. This is allowed when the previous conditions (including the salary size) cannot be saved due to: - changes in the technique and production technology (for example, the introduction of new equipment, which led to a reduction in the employee's load); - structural reorganization of production (for example, the exclusion of any stage of the production process); - other changes in the organizational or technological working conditions, which led to a decrease in the employee's load. It is forbidden to change the employee's labor function. In addition, the organization can reduce the salary not lower than the level established by the collective agreement (agreement) if the collective agreement (agreement) contains the relevant conditions. This is told in parts 1 and 8 of Article 74 of the Labor Code of the Russian Federation. Reduce the salary of employees for reasons not related to the organizational and technological changes in working conditions (for example, due to the deterioration of the financial and economic situation), an organization is not entitled exclusively on its initiative. Such a conclusion follows from part 1 of article 74 of the Labor Code of the Russian Federation.
- Lawyer's answer:
"In the case when for reasons related to a change in the organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the parties the working contract can not be preserved, allowed their change on the initiative of the employer, for An exception to changes in the employee's labor function "(Article 74 of the Labor Code of the Russian Federation). Thus, the employer has no right to "force" the employee to sign "Extras. Agreement ", in which the work function of the employee changes (and this is in your case in accordance with the work by the profession of the milling industry __ discharge) 1. That is, if the employee does not want to work at another profession and will not sign" Extras. Agreement "It is necessary to write two applications to the employer: 1.1 On payment of downtime by the fault of the employer, since: under Article 56 of the Labor Code of the Russian Federation" The employer undertakes to provide an employee to work on the conditioned labor function. " And under Article 157 of the Labor Code of the Russian Federation "Downtime (Article 72.2 of this Code) due to the fault of the employer is paid in the amount of at least two thirds of the employee's average wage. Downtime for reasons that do not depend on the employer and the employee is paid in the amount of at least two thirds of the tariff rate, the salary (occasion of the salary) calculated in proportion to idle time. Downtime due to the fault of the employee is not paid. " 1.2 On the refusal to perform any work, except for the milloverr, as under Article 60 of the Labor Code of the Russian Federation, the employer "is prohibited to require an employee of the fulfillment of work, not caused by the employment contract, except in the cases provided for by this Code and other federal laws." In this case, the employee must be prepared, to the fact that the employer will take measures to terminate the employment contract, that is, dismissal. One condition: the employee does not need to write on his own request, let him fire the employer. If the employer continues to act according to the law, then there will dismiss the employee to reduce (with all payments and guarantees). If the employer tries to dismiss for any other reason, then the employee after dismissal has the right (no later than in a month) to apply to the court about illegal dismissal (in the payment of compensation for forced rushing, etc.). 2 The employee has the right to agree to voluntarily fulfill another job 2.1 constantly (Article 74 of the Labor Code of the Russian Federation). 2.2 In addition, under Article 72.2. Tk of the Russian Federation "By agreement of the parties to the part in writing, the employee may be temporarily transferred to another work from the same employer for up to one year. .. ". One small but in the same article: "If at the end of the translation date, the employee is not provided, and he did not demand it and continues to work, the condition of the agreement on the temporary nature of translation loses strength and the translation is considered constant." Therefore, if the employee does not miss the end, he has the right to do the same as described in paragraph 1. 3, even if the employee agrees to fulfill another work, it is still under Article 220 of the Labor Code of the Russian Federation "In case of non-invasion of an employee in accordance with the funds established standards Individual and collective protection The employer has no right to demand from the employee of the execution of labor duties and is obliged to pay for this reason simple in accordance with this Code. Employee's refusal from work in the event of a danger to his life and health due to violation of labor protection requirements or from difficult work and work with harmful and (or) hazardous working conditions not provided for by the employment contract, does not entail him to bring it . In the event of damage to the life and health of the employee in the performance of their employment duties, the compensation of the specified damage is carried out in accordance with the Federal Law. "
- Lawyer's answer:
I have already answered a similar question. I will answer again: the work schedule of the employee, along with the change of his work, is one of the essential conditions of the employment contract (even if it is not directly recorded in the employment contract, but determined by the current practice at this enterprise for a particular employee) (Art. 57 TK RFT. 72 TK RF). However, the employer may, to optimize the implementation by the Organization of statutory goals and tasks, overlook the staff schedule, functional responsibilities (job descriptions) of individual specialists, as well as graphics and replacement of their work. In accordance with Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the Terms of the Labor Contract, cannot be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee. On the upcoming changes to the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. At the same time, the employee in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation is paid a guide in the amount of two-week average earnings.
- Lawyer's answer:
On the change in the working contract defined by the parties, the employer - an individual in writing warns an employee not less than 14 calendar days. At the same time, the employer is an individual who is an individual entrepreneur, has the right to change the working contract defined by the parties only in the case when these conditions cannot be preserved for reasons associated with a change in organizational or technological conditions of labor (part of the first article 74 of this Code) ( ). In this case, the employer did not violate anything. But everything else he violates. He must terminate the employment contract with you as in the liquidation of the enterprise, paying everything that it relyes: wages for 2 weeks, compensation for unused vacation, allowance (Article 180 of the Labor Code of the Russian Federation). If you have already received a notice, you can write a statement on your own request. At the same time, the employer is still obliged to make payments.
- Lawyer's answer:
Looking for your question, but I will try to answer. The passportist, like any other specialist, should be: either the job description, or functional responsibilities (not important, as this document is called). In these documents that workers get acquainted under the signature when taking them to work, and, which are an integral part of the employment contract, the employee's labor function is revealed and specifies. And she is, just, this labor function, fixed in the above documents, is one of the most important essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation). And, the change in the working contract defined by the parties is allowed only by agreement of the parties to the employment contract (Art. 72 of the Labor Code of the Russian Federation). Conclusion: Agreement of the parties has been reached - it is possible to change (by adding) the employment of the employee, that is, the job description. It introduces additional duties (or their specific part) of the lawyer (legal adviser). This is the more likely to do, since the passportist, in this case, owns the qualifications of a lawyer. As for the question of representing the interests of the organization in the outside, they are at the proxy of the employer can represent at least a cleaner, since the employer entrusted it to her and, again, when receiving the consent of this cleaner. However, the owner is a barin. This is me about the employer. It can, to optimize the implementation by the organization of statutory goals and tasks, overlap the staffing schedule, including the functional responsibilities of individual specialists. In accordance with Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the Terms of the Labor Contract, cannot be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee. On the upcoming changes to the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. At the same time, the employee in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation is paid a guide in the amount of two-week average earnings.
- Lawyer's answer:
Such actions of the head are not based on the law position, and, therefore, the official instruction of the employee regulating and concretizing its official function is an integral part of an employment contract concluded by an employee with an employer. Position is the most important of the essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation), and the change in the working contract conditions determined by the parties is allowed only by agreement of the Parties to the Labor Treaty (Art. 72 of the Labor Code of the Russian Federation Art. 178 of the Labor Code of the Russian Federation paid a allowance in the amount of a two-week average earnings .
- Lawyer's answer:
An employer in line with the local regulatory acts currently operating in the enterprise (the rally, the provision on remuneration, the provision of bonuses, etc.) may decrease premium, stimulating payments. But, the salary ... It is one of the essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation), and the change in the conditions defined by the parties of the employment contract is allowed only by agreement of the parties to the employment contract (Article 72 of the Labor Code of the Russian Federation). However, the owner is a barin. This is me about the employer. It can optimize the fulfillment of statutory goals and tasks to overlap the staffing, including the form and size of remuneration. In accordance with Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the Terms of the Labor Contract, cannot be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee. On the upcoming changes to the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. At the same time, the employee in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation is paid a guide in the amount of two-week average earnings.
- Lawyer's answer:
The court's decision and illegally and unreasonably, so on. It is adopted with violation of the norms of material and procedural law, namely: the form of remuneration is one of the essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation), and the change in the conditions defined by the Terms of the Labor Contract is allowed only By agreement of the parties to the employment contract (Art. 72 of the Labor Code of the Russian Federation). However, the owner is a barin. This is me about the employer. It can, to optimize the execution of statutory goals and tasks to overlap the staff schedule, including the form of remuneration. In accordance with Article 74 of the Labor Code of the Russian Federation in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), determined by the Terms of the Labor Contract, cannot be saved, allowed Their change on the initiative of the employer, except for changing the employment of the employee. On the upcoming changes to the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. At the same time, the employee in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation is paid a guide in the amount of two-week average earnings. Yes, and here's another, Mrs. student ... A court link in the motivation part of the court decision that the employer's disposal is not a regulatory act - it is complete nonsense. The ordinary disposal of the employer is nothing more than a local regulatory act, mandatory to fulfill its employees until its appeal and cancellation.
- Lawyer's answer:
Can. True, this can be done only two months after the employee has informed about the upcoming changes (Art. 74 of the Labor Code of the Russian Federation). In addition, an employee's consent will be required to reduce the salary. After all, Article 74 of the Labor Code of the Russian Federation allows us to change the terms of employment contract without the consent of the employee only in exceptional cases. Namely, when changing equipment and production technology and with structural reconstruction or reorganization of production.
Article 372 of the Labor Code of the Russian Federation, implies the possibility of a decision by the employer even in case of disagreements with representatives of employees, but without its compliance, this decision on a formal foundation may be appealed to the State Labor Inspectorate or to court. If the changes in the working time mode affect the content of the contract with the employee of the employment contract, then the procedure for changing the working contract conditions determined by the parties, provided for in Article 74 of the Labor Code of the Russian Federation, that is, the employer is obliged to notify the employee in writing no later than two months. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. In the absence of this work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the part of the first article 77 of the Labor Code.
- Lawyer's answer:
Be complaining wherever you want and how much you want ... Change the conditions defined by the parties of the employment contract for reasons associated with a change in organizational or technological conditions for it is possible when the reasons specified in the first paragraph of this article may entail the massive dismissal of employees, the employer In order to preserve jobs, it is entitled to consider the opinion of the elected body of the Primary Trade Union Organization and in the manner established by Article 372 of this Code to make local regulatory acts, introduce a part-time work regime (shift) and (or) part-time working week for up to six months . If the worker refuses to continue working in an incomplete working day (shift) and (or) part-time working week, the employment contract is terminated in accordance with paragraph 2 of the first part of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.
For reasons associated with a change in organizational or technological conditions of labor in the case when for reasons related to the change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons), defined by the parties, the working contract can not be Saved, their change is allowed on the initiative of the employer, with the exception of changes in the employee's labor function. On the upcoming changes to the conditions of employment contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months, unless otherwise provided for by this Code. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another job with the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job) that the employee can carry out that Health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. Offering vacancies in other locations, the employer is obliged if it is provided for by the collective agreement, agreements, an employment contract. In the absence of the specified work or 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. © ConsultantPlus, 1992-2013 Consequently, in the event of a refusal, the employee will be dismissed from on the basis and wording Article 77. 7) The refusal of the employee from continuing to work in connection with the change in the working contract defined by the Terms of the Labor Code (part Four Article 74 of this Code) © ConsultantPlus, 1992- 2013 When dismissal on this basis, the allowance is paid: Art. 178 of the Labor Code of the Russian Federation, the day off allowance in the amount of a two-week average earnings is paid to the employee when terminating the employment contract in connection with: the refusal of the employee from continuing work in connection with the change in the working contract defined by the parties (paragraph 7 of the first part of Article 77 of this Code). © ConsultantPlus, 1992-2013 Consequently: The employer in the proposed situation has such a right, an employee can be fired in the order indicated above. Dismissal by agreement of the parties is possible in any situation. Your position is unknown and we must consider: Article 75. Labor relations when changing the owner of the property of the organization, a change in the jurisdiction of the organization, when changing the property owner of the organization, a new owner no later than three months from the date of his own property rights has the right to terminate the employment contract with the head of the organization, his deputies and chief accountant. The change of ownership of the organization's property is not a basis for termination of employment contracts with other employees of the organization. For more qualified consultation, I recommend you to seek help to a lawyer.
- Lawyer's answer:
Legitimate. According to Art. 74 of the Labor Code of the Russian Federation "On the upcoming changes to the conditions of employment contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months, unless otherwise provided by this Code. If the employee does not agree to work in new conditions, the employer is obliged in writing to offer him another employer with the employer "" In the absence of this work or a 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. "Art. 77, clause 7 of Part 1 of the grounds of termination of the employment contract are: a refusal of an employee from continuing to work in connection with the change in the working contract defined by the Parties (part of the fourth article 74 of this Code);
- Lawyer's answer:
You can theoretically lower, but in practice it is very difficult. Make this employer can two ways: by agreement of the parties (Art. 72 of the Labor Code of the Russian Federation), or unilaterally (Art. 74 of the Labor Code of the Russian Federation). 1. In order to reduce the salary by agreement of the parties with each employee, it is necessary to conclude an additional agreement to the employment contract in writing. But it should be remembered that this method is very risky. This can cause an increased interest in your company from the auditory authorities. These actions will be considered legitimate if the salary reduction is caused by the reasons, and additional agreements are signed by employees without any pressure on them. 2. To reduce the salary unilaterally, the rules provided for in Article 74 of the Labor Code must be followed. On the upcoming changes to the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in writing no later than two months. With each of the employees, we agree to continue working on new payment terms, you must conclude an additional agreement to the employment contract, and in disagreement to offer another work; And only 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 the Labor Code of the Russian Federation.
- Lawyer's answer:
If there was a change in the standard schedule, i.e., the SD reduced the bid to 0.1, then this is a reduction. Perhaps the material from the "personnel case" magazine (№3, 2009) will help you to figure out: the question. Part-time or reduction? To reduce the cost of personnel by the company's management, a decision was made: part of the staff to translate into Pol. Appropriate changes were made to staffing. The workers notified that it was established by part-time for four hours and, accordingly, the payment was half reduced half. How legally it is? Answer. Let's figure it out. Let's see what happened in fact: reducing individual posts by half or establishing part-time work regimens. Since in this case there is a substitution of concepts. So, if there was a reduction (suppose in five employees, it was reduced by 0.5 bets: there were 40 full-time units in the staffing schedule, it was 37.5), then the employee, the position of which is reduced by Poltavka, should notify in the prescribed manner not about translating Part-time, but about the reduction of positions occupied by 0.5 bets. Now, if there was no reduction in the staff schedule, and the question of decreasing the amount of remuneration to the employee (with a reduction in working time) would remain relevant, then we would notify employees about the introduction of an incomplete working time regime. However, when translating the mode of incomplete working time is not so simple. It should be remembered that unilaterally, in accordance with Article 74 of the Labor Code, you can set this mode only: in order to save jobs. That is, this is possible only under the condition if the changes in the organization of organizational or technological conditions of labor in the organization are threatened by mass dismissal of workers; Taking into account the opinion of the elected body of the primary trade union organization; For up to six months. The Labor Code does not give a definition of incomplete working time. However, as follows from article 93 of the Labor Code, it should be considered incomplete, the duration of which is smaller than the normal working time, installed by the employee. If, for example, an employee has a 5-day working week with an 8-hour working day, then the introduction of a working day for it is a duration of four hours (with payment in proportion to spent time) will be transferred for incomplete working time. If it is translated into Pol, then the 4-hour working day will be the norm for him. Consequently, you did wrong. In your case, it was necessary to notify each employee about the reduction of its pollen and offer the transfer to the remaining gravy with the indication of the new mode of operation and wages.
- Lawyer's answer:
In general, everything? See the Labor Code 77. General grounds for termination of the employment contract. The foundations of termination of the employment contract are: 1) the agreement of the parties (Article 78 of this Code); 2) the expiration of the employment contract (article 79 of this Code), except when labor relations actually continue and None of the parties demanded their termination; 3) Termination of the employment contract on the initiative of the employee (Article 80 of this Code); 4) Termination of the employment contract at the initiative of the employer (Article 71 and 81 of this Code); 5) Translation of an employee at his request or with His consent to work towards another employer or the transition to the election work (position); 6) the refusal of the employee from continuing to work in connection with the change of ownership of the organization's property, with a change in jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code); 7) the refusal of the employee from the continuation of work in connection with the change in the condition defined by the parties of the employment contract (part four of article 74 of this Code); 8) the refusal of the employee from transfer to another work necessary to him in accordance with the medical conclusion issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation or the lack of an employer Works (parts of the third and fourth Article 73 of this Code); 9) the refusal of the employee from the transfer to work to another locality together with the employer (part of the first Article 72.1 of this Code); 10) circumstances that do not depend on the will of the Parties (Article 83 of this Code) 11) Violation of the rules established by this Code or other Federal Law, if this violation eliminates the possibility of continuing work (Article 84 of this Code). Studies 81. Termination of the employment contract At the initiative of the employer, the employer may be terminated by the employer in cases: 1) elimination Organizations or termination Individual entrepreneur; 2) reduction in the number or staff of employees of the organization, individual entrepreneur; 3) non-compliance with the employee of the office or performed work due to insufficient qualifications confirmed by the results of certification; 4) the change of the owner of the organization's property (in relation to the head of the organization, his deputies and chief accountant ); 5) a repeated non-fulfillment by an employee without valid causes of labor duties, if it has a disciplinary penalty; 6) a single gross violation by an employee of labor duties: a) absenteeism, that is, there is no valid causes during the whole working day (shift), Regardless of its (her) duration, as well as in the case of a lack of in the workplace without good reasons for more than four hours in a row during the working day (shift); b) the emergence of an employee at work (at its workplace or in the organization - an employer or an object . where, on behalf of the employer, the employee must carry out an employment function) in a state of alcoholic, narcotic or other toxic intoxication; c) disclosure of the secrets protected by law (state, commercial, official and other), which has become a famous employee in connection with the execution of labor duties, including disclosures of personal data of another employee; d) committing at the place of work of theft (including small) of someone else's property, waste, deliberate destruction or damage established by the court's verdict or by the decree of the judge, the authority, an official authorized to consider cases about administrative offenses; e) established by the Commission for Labor Protection or Commissioner for Labor Protection by the employee of labor protection claims, if this violation led to serious consequences (accident on produced
- Lawyer's answer:
In the case of production need, the administration has the right temporarily, for up to one month, transfer its employee to another job. Even if such a translation does not meet the conditions of the employment contract. This is said in Article 74 of the Labor Code of the Russian Federation. In the same article, there is a list of cases of industrial necessity. Note: This list is exhaustive. It should be emphasized that it is a prerequisite for one or another reason for the discharge of production necessity, its exclusivity and intransience. In particular, temporary transfer is allowed to prevent disasters, accidents or natural disasters, as well as to eliminate their consequences. In addition, it is possible to translate an employee in order to prevent an accident, simple, or to replace the missing employee. In addition to this, the Labor Code of the Russian Federation establishes a number of restrictions on temporary translations. Firstly, such a translation is possible only within the limits of the organization with which the employee has entered into an employment contract. Secondly, the salary on the new work should not be lower than the average earnings in the previous position. Thirdly, the work on which the employee is translated should not be contraindicated by him for health. And, finally, as we have already noted, temporarily transfer an employee to another job for a period of no more than one month during the calendar year. In order to temporarily translate an employee to another job, its consent is not required. However, this does not apply to the cases when the new work is lower qualifications. Here you need to get a written consent from the employee to such a translation. Warry payment to another job. Move transfer to another job - a permanent or temporary change in the labor function of the employee and (or) of the structural unit in which the employee works (if the structural unit was operating in the employment contract), while continuing to work at the same employer, as well as a translation to another Terrain together with the employer. The translation to another job is allowed only with the written consent of the employee, with the exception of cases stipulated by the second and third paragraphs 72.2 of this Code. According to the written request of the employee or with his written consent, the employee can be transferred to a permanent job to another employer. At the same time, the employment contract is still terminated (paragraph 5 of the first part of Article 77 of this Code). Does not require the consent of the employee moving it to the same employer to another workplace, to another structural unit, located in the same area, instructions to work on another mechanism or unit, if it does not entail changes to those defined by the parties to the conditions of employment contract. Article 306. Changing the working contract defined by the parties by the employer is prohibited to translate and move an employee to work contraindicated by him for health. On the change in the working contract defined by the parties, the employer - an individual in writing warns an employee not less than 14 calendar days. At the same time, the employer is an individual, who is an individual entrepreneur, has the right to change the working contract defined by the parties only in the case when these conditions cannot be preserved for reasons associated with a change in the organizational or technological conditions of labor (part of the first article 74 of this Code).
Konstantin Semiotrohov
Hello, tell me ST 74 those RF for women with children under 14 years old fits?
Eduard Hochlenkov
Hello! Can the employee reduce the employee for 0.5 rates a year before retirement.
Bogdan Ugolnikov
The employer issues an order to reduce the salary, I disagree. Hands me a notice of changing the salary, where indicates if I disagree, I will be fired after 2 months of Article 77 part 1 of paragraph 7 or Article.77 Part 1
Maxim Serganov
How to understand the article 74 of the TC - "The duration of transfer to another job to replace the missing employee cannot exceed 1 month during the calendar year (from January 1 to December 31). And in different comments, these transfers are said to 1 month can be as much as you like.
Roman Boatnikov
for how many days, the employer is obliged to warn an employee about changing the schedule?. I work in the clothing store and now it became interesting. The schedule is compiled for a week ahead but it happens so that the change is warned by the day before shift. If you can refer to the TC.
Alla Gerasimova
do you have the right to reduce the full bet to 0.75 ???. If a person works at a complete rate, can it reduce its bid to 0.75 ??? What grounds can. And yet, I heard that it seems to be a mortgage loan, then cuts are not eligible. Is it so???
Yaroslav Lobashkov
reducing the salary. Is it possible to reduce the salary to working retirees and partners? The procedure is the same as on the main workers?
Anastasia Gusev
And if in the company the director only and its relatives increases the salary, it can be chipped like that?
Marina Sergeeva
The main features of the accrual of s / n in modern conditions. "Specified to write work on" the main features of the accrual of s / n in modern conditions ". You need to be very much. Describe at least in short.
Anastasia Davydova
They suggested to quit on their own or the transition to work is not specialty .. worked by a millover. There were 4 people on the plot. Due to the lack of work, the three sent to other sites. At that time I was first on vacation, then on the hospital. When you go to work, I was asked to work on the site where Him applied. Materials (acetone, resin, etc.). I do not carry such smells, and just do not want to work there. Officially there is no harmless - milk, add. Vacation, it's not all. Nevertheless, people work in respirators and rubber gloves - otherwise it is impossible! By the way, for me the respirator was simply not found, I work without it. An additional agreement has not yet signed, worked for 2 days. How to do in my case? Can I take it (add. Agreement) home, for more detailed study (consultation)? And if they will insist on immediate signing?! !
Margarita Andreeva
Do I have the right to force the employee from the day in the night shift if the possibility of translation is not prescribed ++. He has in the contract, and an employee opposes this translation?
Alina Anisimov
I work in the store by the seller from IP. For 2 weeks I was notified that the point closes and asked to think if I would be the work. Work at another point or go. I decided to refuse! For 4 days they said that we need to work out for two weeks. There is an employment contract, but not all items were carried out and P. vacation was not paid, but the taxes were paid! What to do? Write an application for dismissal and do not work out? The workshop does not suit. Thanks for answers! I want to do good, not causing anything inconvenience and by law!
Claudia Komarova
can a passport hold a lawyer's work. Ukraine. We have such a situation at the enterprise: by staffing standards, by the end of this year there are 0.5 draft lawsuits and 0.5 passport rates. From the beginning of 2012, the main department removes 0.5 draft advisions and leaves 1 passport rate. Is it possible to change the duties of the legal adviser? And in general, is the right passportist to represent the interests of the enterprise in the executive bodies, Court and TD. etc.?
Konstantin Nesmelov
Does the right head of the state enterprise be reduced in office a pregnant woman?
Denis Bogdashkin
Foundation Reduction of an open salary?
Nadezhda Zakharova
The head of the order introduced a piecework form of remuneration into the organization. The head of the organization has introduced a piecework for remuneration in the organization. Employees with time-free payments appealed to the court with a statement to recognize this order illegal and not subject to use, as its application will entail a significant reduction in their wages. The court refused to satisfy the requirements of employees, believing that the order of the head of the Organization is not a legal act, since it is designed exclusively on the circle of employees of the organization. Employees of specific examples of violations of their rights did not lead, by virtue of which they are not deprived of opportunities upon receipt of wages in a smaller amount to apply to court. Is it possible to recognize the court decision legally and reasonable?
Mikhail Muchnikov
Can an employer lower salary ??? and on what basis ???? and on what basis?
Evdokia Vasilyeva
Where do you need to contact if in the company reduce the working day?
Olga Ryabova
Changing the employment contract. A task. The task in April 2006. One of the production brigades of the enterprise decided to go to the hostect. One of the members of the brigade refused to work on new conditions. Employer, notifying him about the transition to the commercial and taking measures to employment, in June 2006. Distribution with an employee of the employment contract. Are the employer's legitimate actions? Argument your answer.
Gennady Lazarko
Can we reduce salaries in a regular lap ????
Gennady Yaparov
The rate is reduced to 0.1 units. Is it a reduction or change in the terms of the employment contract?
Ksenia Vorobyeva
Failure to transfer! Please tell me how to do? The girlfriend works on the chain of stores, its trading point is closed .. Notifications for 2 months as it should be, there was no. For three weeks they brought some piece of paper in which it was written that on August 26 it was translated, due to the closure of the point. And where, on which position and with what salary, nothing was written. A few days later she was spent orally on the phone offered 4 jobs, but with the transition to another locality (from the Moscow region they offer to Moscow now to ride) and with a decrease in office (from the administrator on the seller) and, accordingly, loss in the salary. But there was no written offer. And today they proposed to write a statement on your own request, since she verbally refused to translate. How best to act in this situation. And is it worth writing such a statement if not, how best to write? Help me please!! !
what are the reasons for dismissal
Maria Mikhailova
Question from labor law. Does the employer have the right to translate an employee for one month to other work without its consent, due to the production need to prevent the damage to the details, with salary preservation? How will the employee's dismissal legitimate if he does not go to work in connection with disagreement in translating ???
1. In accordance with Part 1 of Article 74 of the Labor Code of the Russian Federation, the employer has the right to change the organization's organization unilaterally to change the conditions of employment, determined by the parties under its conclusion, except for changing the work function of the employee.
Since the commentated norm connects the ability to change (at the initiative of the employer), the employer is obliged to submit evidence confirming that such a change was the result of changes in the organization of labor or in the organization of production (for example, changes in the production and production technologies , improving jobs based on their certification, structural reorganization of production) and did not deteriorate the position of the employee compared with the terms of the collective agreement, the agreement. In the absence of such evidence, the change on the initiative of the employer due to the parties to the conditions of the employment contract cannot be considered legal (see paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
2. On the upcoming change of the working contract defined by the parties, as well as the reasons that caused such changes, the employer is obliged to notify the employee in advance, no later than 2 months before their introduction. Notice must be done in writing.
If the previous conditions of the employment contract cannot be preserved, and the employee does not agree to continue working in the new conditions, the employer is obliged to offer him a written written job with him, relevant to his qualifications and health status. If there is no such work, the employer is obliged to offer an employee who has a vacant subordinate position or the lower job, which the employee can perform in accordance with his qualifications and health status. At the same time, the employer is obliged to offer an employee all responsible for the specified vacancies available in this area. That is, it is understood that the employer is obliged in this situation to offer the employee the corresponding vacancies not only directly in the organization itself in which the employee is busy, but also in its structural units, if they are located in the same area. If the vacancies are available in the structural divisions located in other areas (for example, in the branch or office of the organization), the employer is obliged to offer them, if it is provided for by the collective agreement, agreements, an employment contract.
In the absence of an employer with the relevant work, as well as in the event of a refusal of an employee from the other work proposed by him, the employment contract with it on this basis (see comments to Art. 77). When dismissing workers on this basis, they pay a day off allowance in the amount of a 2-week average earnings (part 3 of article 178 of the TC).
In the event of a dispute about the legality of the termination of the employment contract, the employer must prove the impossibility of preserving its previous conditions. If this circumstance is proved, but the employee is fired at paragraph 7 of Art. 77 TCless warning in 2 months about changing the conditions of the employment contract, the court when considering the dispute, on the established judicial practice, can change the date of dismissal in such a way that labor relations are terminated on the day of the 2nd-month term. If the employee was warned about the changes in the conditions of the employment contract, but dismissed in connection with the introduction of new working conditions before the expiration of a 2-month term, the Court may change the date of dismissal, taking into account the time remaining before the expiration of the specified period.
During which the employment contract has been extended in connection with the change in the date of its termination, the employee must be reimbursed by their earnings.
3. Part 5 of Article 74 of the Labor Code of the Russian Federation establishes a special procedure for changing the conditions of the employment contract at the initiative of the employer in cases where changes in organizational or technological conditions of labor can entail mass dismissal of workers.
The criteria for mass dismissal are determined in industry and (or) territorial agreements (part 1 of article 82 of the TC). When they are developed, it can be used - taking into account the territorial and sectoral features of the development of the economy and the level of unemployment in the region - the criteria of mass dismissal established by the Decree of the Government of the Russian Federation of February 5, 1993 N 99 "On the organization of work on employment assistance in a mass release" ( SAPP RF. 1993. N 7. Art. 564). In accordance with it, the main criteria of mass dismissal are indicators of the number of dismissed employees in connection with the liquidation of organizations or a reduction in the number or staff of workers for a certain calendar period. These include:
- a) the elimination of the organization of any organizational and legal form with the number of 15 and more people;
- b) Reducing the number or staff of employees of the organization in quantity:
- 50 or more people for 30 calendar days;
- 200 or more people within 60 calendar days;
- 500 or more people within 90 calendar days;
- c) dismissal of workers in the amount of 1% of the total number of employees in connection with the liquidation of the organization or a reduction in the number or staff within 30 calendar days in the regions with a total number of employed less than 5 thousand people.
4. If the changes in organizational or technological conditions of labor can entail a massive dismissal of employees, the employer in order to maintain jobs is entitled, taking into account the opinion of the elected body of the primary trade union organization to introduce a part-time work regime (shift), but only for a period not exceeding 6 months. Accounting for the opinion of the elected body of the primary trade union organization is carried out in the manner prescribed by Art. 372 TC for the adoption of local regulatory acts (see comments. To it).
On the introduction of incomplete working time in these cases, as well as the change in other conditions provided for by the employment contract, employees must be notified by the employer in writing no later than 2 months before its introduction.
However, if the employee fails to continue working on the terms of an incomplete working day (shift), the employment contract is terminated with it by paragraph 7 of Art. 77 TC, and under paragraph 2 of Part 1 of Art. 81 TC, i.e. According to the rules for reducing the state or number of employees of the organization. When terminating the employment contract in this case, the employee is provided with all guarantees and compensation provided for persons issued in connection with the reduction in staff or the number of employees (see Comment. To Art. 81).
5. The law establishes a deadline for which an incomplete working day may be introduced (shift) - 6 months. Within this period, its specific duration is established. After a 6-month period, employees must be translated into the former mode of operation.
Cancellation of the part-time mode before the expiration of the deadline for which it was installed, is made taking into account the opinion of the elected body of the primary trade union organization.
6. In accordance with Part 8 of Article 74 of the Labor Code of the Russian Federation, a change in the parties of the work contract for the reasons associated with the change in organizational or technological conditions of labor is not allowed if this change worsens the position of the employee compared with the terms of the collective agreement, the agreement.