Labor code of the Russian Federation, part 2, article 74. Theory of everything

"Human Resources Management", 2009, N 8

ALMIGHTY ARTICLE? CHANGE OF TERMS OF EMPLOYMENT CONTRACT
IN ACCORDANCE WITH ART. 74 of the Labor Code of the Russian Federation

The article of the Labor Code of the Russian Federation, which allows you to change the terms of the employment contract for reasons related to changes in the organizational or technological working conditions, was used by employers very rarely before. However, at present it has gained particular popularity, which is largely due to the economic crisis.

In connection with its onset, many employers need to reduce production costs, including wages, increase labor efficiency, etc. As a result of the current situation in the world market, the employer is forced to cut workers' wages, change the work schedule of employees, the intensity of their work, etc. Of course, all these innovations are trying to be implemented amicably by signing an additional agreement to labor contracts, explaining the situation to the workers and receiving them consent to amendment of contracts. However, not all employees are able to come to an agreement. And then the employer begins to look for opportunities to change the working conditions of workers unilaterally and, like a magic wand, turns to Art. 74 of the Labor Code of the Russian Federation. It gives the employer the right to unilaterally amend the terms of the employment contract determined by the parties, having previously warned the employee about the upcoming changes two months in advance. It would seem that it is easier for the employer - he chose the clause of the labor contract that needed to be adjusted, waited two months and introduced new conditions. Moreover, the employer often sees a plus in the fact that if the employee refuses to work in the new conditions, he can be fired under clause 7 of Art. 77 of the Labor Code of the Russian Federation with the payment of a two-week severance pay, and not on staff reductions with the provision of more significant compensation to the employee. That is why a number of employers are trying to use this article in order to, by creating a priori unbearable working conditions, dismiss the employee under this item, and not in connection with the actual staff cuts. However, is this article given such unlimited possibilities, as it seems to us at first glance? Perhaps most employers misapply it for not seeing many of the legal risks? Let's try to figure it out.

Novels of the Labor Code of the Russian Federation

The possibility of changing the terms of an employment contract unilaterally was provided for in the Labor Code of the Russian Federation from the very beginning. However, when the legislator introduced changes in 2006, the article changed its number (from 73 to 74) and was set forth in a different, new edition. At first glance, the old and new editions are almost identical. Without taking into account the formal changes, let us pay attention to the legislative amendments that are significant for the practical application of this article. In our opinion, there are only six of them. For a more convenient analysis, we present the texts of the old and new editions of the corresponding article of the Labor Code of the Russian Federation in tabular form.

New edition of Art. 74 of the Labor Code of the Russian Federation Old edition of Art. 73 of the Labor Code of the Russian Federation
Article 74. Modification of certain
parties to the terms of the employment contract
reasons related to the change
organizational or technological
working conditions Article 73. Change
essential conditions of labor
contract

So, if you have already worked with this article and applied it in practice, you should pay attention to 6 important changes that have occurred in it.

1. First, earlier it was said that in this order the employer can change the essential terms of the employment contract, but now - the terms of the employment contract determined by the parties.

It would seem, what's the difference? The amendment is purely formal. In fact this is not true. And the point is this. Previously, there was a long dispute in the legal literature about what are the essential conditions of an employment contract. Some researchers believed that these are the conditions that were directly named as essential in Art. 57 of the Labor Code of the Russian Federation, and with regard to their changes, a special procedure must be followed (either an additional agreement was signed with the employee, or it was necessary to carry out the procedure provided for then by Article 73 of the Labor Code of the Russian Federation). All the rest of the conditions prescribed in the employment contract with the employee were, in their opinion, insignificant, which means that they can be changed at any time by the employer unilaterally without observing any regulations. Other lawyers were convinced otherwise. They believed that any condition included in the employment contract is essential. Another thing is that, in their opinion, those conditions that were directly called essential in Art. 57 of the Labor Code of the Russian Federation, should have been included in the employment contract without fail. Other conditions were included in the employment contract at the request of the parties. However, if they were spelled out in it, then they became significant. In the argumentation of the supporters of this position, reference was made to civil law, according to which, as you know, the essential terms of the contract are both binding or essential for such a contract in accordance with the law, and those in respect of which the parties, upon the application of one of the parties, must reach agreements. In the opinion of such lawyers, changing any conditions prescribed in the contract required adherence to a special procedure prescribed then in Art. 73 of the Labor Code of the Russian Federation. In practice, as a rule, employers were guided by the first of the stated positions, simply because it was more profitable for them. But the legislator, having made amendments to the Labor Code of the Russian Federation in 2006, actually supported the lawyers who proved that changing any term of the employment contract requires either obtaining the consent of the employee or observing a special procedure.

2. Secondly, changes are allowed only when those determined by the parties to the employment contract cannot be retained by the employer.

Previously, a reference to such a condition for the application of Art. 73 of the Labor Code of the Russian Federation was absent. In the comments to Art. 73 of the Labor Code of the Russian Federation, researchers of labor legislation wrote that the application of the old Art. 73 of the Labor Code of the Russian Federation is possible only if the old working conditions objectively cannot be preserved. But there was no direct instruction from the legislator on this matter, which was not only used by many employers, but also abused.

Example 1. So, in one company, one office employee, whom the management wanted to dismiss, was decided in the manner prescribed by the old art. 73 of the Labor Code of the Russian Federation, to establish a working day from five in the morning in order to force him to leave.

Now the implementation of such a trick is almost impossible. The employer must really have objective reasons for the impossibility of maintaining the current working conditions. For example, he introduces new equipment, which forces him to transfer workers to a different work schedule; the owner breaks the lease with the employer, and he is forced to move to another office in the same area, etc. That is, the employer must now not only find the reason for the changes in the terms of the contract, but also prove that the previous working conditions were really impossible to maintain. Why it was impossible to leave the old work schedule to the office employee, it is unlikely that now it will be possible to explain to the labor inspectorate.

3. Thirdly, earlier the legislator did not specify exactly what reasons could be the grounds for changing the terms of the employment contract.

Now he is in Part 1 of Art. 74 of the Labor Code of the Russian Federation gives two possible examples. These are changes in technology and production technology and the structural reorganization of production. This list is not exhaustive, and the legislator indicates that there may be other reasons for changing the terms of the employment contract. But, in all likelihood, they should be, firstly, similar to those named and, secondly, just as weighty.

4. When notifying the employee about changes in working conditions, you must inform him about the reasons for the introduction of such changes.

It is important to take this into account when carrying out the procedure itself, provided for by the new Art. 74 of the Labor Code of the Russian Federation. If earlier in the notification with which you introduced the employee, you had to indicate only what changes awaited him, now you should write the reasons for them. Otherwise, your actions will be considered illegal.

5. The personnel officer should immediately offer the employee both vacancies corresponding to his qualifications and vacancies that imply a lower qualification.

This is also important to remember when carrying out the procedure itself. Previously, in accordance with the old art. 73 of the Labor Code of the Russian Federation, in the event of an employee's refusal to continue working on new conditions, offer him another job available in the organization, corresponding to his qualifications and state of health. And only if there was no such work - a vacant lower position or lower-paid work that an employee can perform, taking into account his qualifications and state of health. With a literal interpretation of this article, it turned out that if you had positions in the organization that corresponded to the qualifications of an employee, and he refused them, he could be immediately dismissed under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation. You were not at all obligated to offer other jobs of lower qualifications (even if they exist in the organization). Now the personnel officer should offer the employee immediately both vacancies corresponding to his qualifications and vacancies that imply lower qualifications. Otherwise, the termination procedure will be deemed to have been carried out in violation.

6. The employer is obliged to offer vacancies in other localities only if it is stipulated by the collective agreement, agreements, labor contract.

Previously, there was no such clarification in the Labor Code of the Russian Federation, and it turned out that the employer had to offer all the vacancies corresponding to the qualifications and health of the employee, including those available to him in another locality. Now he is obliged to do this only if it is expressly provided for in the collective agreement or agreement.

What and under what conditions can be changed in the order,

provided for by Art. 74 of the Labor Code of the Russian Federation?

Questions about what conditions of an employment contract and under what conditions can be changed have always been controversial. Moreover, in determining these conditions in practice, as a rule, mistakes are made.

Conditions under which the employer has the right to change the employment
unilateral agreement

First, let's consider under what conditions the employer has the right to change the employment contract unilaterally. There are only two of them.

First, as we wrote above, you were not able to keep the old working conditions.

Secondly, your organizational or technological working conditions are changing, which leads to the appearance of reasons for changing the employment contract. A mistake in this regard, for example, is such an application of Art. 74 of the Labor Code of the Russian Federation.

Example 2. In one of the organizations, before the arrival of the new management, an employment contract was concluded with each of the employees, according to which, in the event of dismissal of an employee at the initiative of the employer, the latter undertakes to pay the first 10 average monthly salaries. The author of this article can only guess about the motivational factors that prompted the previous employer to insert such a clause in the employment contract. However, the new leadership decided to get rid of the “old guard” in one of the large divisions and carry out staff reductions. (It is clear that it is not so easy to induce a simultaneous acute desire among two hundred employees to leave of their own accord or by agreement of the parties.) However, the need to fulfill the condition of the “ill-fated” clause of the labor contract threatened the organization with fabulous losses. What can be done in such a situation? As a result, the new employer turned to legal advice for help in resolving this situation, which gave the firm's management the following “legal” advice.

The management of the enterprise can unilaterally change this condition of the employment contract, based on Art. 74 of the Labor Code of the Russian Federation, according to which, for reasons related to changes in the organizational and technological working conditions, it is allowed to change the terms of the employment contract determined by the parties without changing the labor function. The reason for the change in this "unfortunate" clause of the labor contract (or, more simply, its removal from there) will be a change in the entire system of benefits and compensations at the enterprise.

In the opinion of the author of this article, this advice indeed given to the company by legal advice was not based on the law for two reasons. We will talk about the second below. The first reason why this advice was at least incorrect is the following. Lawyers made a logical mistake in determining the causality of the phenomenon and its consequences. After all, the system of benefits and compensations is, simply put, all those benefits and compensations that all employees of the organization receive in accordance with the relevant clauses of labor contracts held by each of them. In other words, a beautiful generalizing phrase (change in the system of benefits and compensation) is, in fact, the very fact of a change in the essential conditions of employment contracts for a group of employees. However, the “reason” “justifying” these actions of the employer is not indicated. Let's give an example for comparison.

The company has switched to more modern equipment, the production technology has changed (reasons), in connection with which (the result) the operating mode of the entire enterprise has changed, i.e. the work schedule of each individual employee (i.e. the corresponding clauses of each employment contract).

If the same logical error was made in these arguments as in the first case, then we would say that the operating mode of the entire enterprise is changing - the work schedule of a particular employee is changing (i.e. modern equipment to justify such actions could not be purchase and do not change the production technology).

Terms and conditions of the employment contract that can be changed

Now let's talk about the conditions that the employer has the right to change. Here, too, everything is not so simple. The only thing that is absolutely clear is that you cannot change the functionality of an employee. As for the possibility of changing other conditions of the employment contract, they are debatable. So, in the opinion of the author of this article, with its help it is possible to change only the working conditions, and not the conditions for changing or terminating the employment contract. This, in our opinion, follows from the context of Part 3 of Art. 74 of the Labor Code of the Russian Federation, which says that if the employee does not agree to work in the new conditions, then the employer is obliged to offer him another job available to the employer in writing (and not if he does not agree, among other things, to change the conditions for changing or terminating the employment contract). That is, from this provision, we can conclude that the legislation “presupposes” a significant change in the clauses of the employment contract that determine the conditions of the employee's work, and not the conditions for his dismissal. This is the second reason why, in our opinion, the advice given by lawyers (see example 2) is clearly not in accordance with the law. After all, the consultants, it seemed to them, came up with a clever way of changing the procedure for dismissing employees, and not changing the conditions of their work.

A controversial enough question: is it possible to change the employee's salary? If some lawyers are sure that the employer cannot do this unilaterally on any grounds, others are convinced that since the only directly named work condition that cannot be changed is the employee's functionality, then the employer has the right to change the amount of his monthly remuneration. To the author of this article, the second point of view seems deeply dubious, because then some strange collision appears in labor legislation and it consists in the following. Part 5 and 6 of Art. 74 of the Labor Code of the Russian Federation it is written that in the case when the reasons specified in Part 1 of Art. 74 of the Labor Code of the Russian Federation, may entail mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, to introduce a part-time (shift) and (or) part-time working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part 1 of Art. 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation.

That is, if we proceed from the fact that the employer has the right to unilaterally change the employee's salary, we get the following collision. If the employer uses parts 5 and 6 of Art. 74 of the Labor Code of the Russian Federation and with their help decides to establish a part-time working day for employees, and, accordingly, pay in proportion to the hours worked (which, in the opinion of the author of this article, is absolutely legitimate, because the salary itself does not decrease, it is simply charged proportionally), then in case of the employee's refusal to work on such payment terms will have to dismiss him in the manner prescribed for the reduction of staff (that is, not only with a two-month warning, but also with the payment of two, and possibly three average monthly salaries). If our employer decides to simply cut the salary of its employees unilaterally, then, firstly, they will work for less money full (and not reduced) working hours. Moreover, in the event of their refusal to work on such conditions, it will be possible to dismiss them not at all due to staff reductions, but in accordance with clause 7 of Art. 77 of the Labor Code of the Russian Federation with the payment of only a two-week severance pay.

However, it is deeply doubtful that the legislator provided an opportunity for the employer to find such a clever way out. And, in our opinion, it is still impossible to change the salary of an employee unilaterally.

Another controversial issue, to which it is difficult to give an unambiguous answer: is it possible to change the conditions of the employee's social package and in what cases? Let's give a concrete example.

Example 3. In one company, according to the local regulation, which was referenced in the employment contract, the employer paid the difference between the temporary disability benefit and actual earnings to employees in the event of illness. When the crisis broke out, the company simply did not have money for such generous gestures, and the employer decided to remove this clause from the contract. Whether this can be done or not is difficult to answer. After all, these benefits are not working conditions or even remuneration for work, but social guarantees for the employee in the event of their temporary incapacity for work.

And, of course, there are the terms of the employment contract, which you definitely have the right to change: set the employees part-time or part-time work, change the work schedule, transfer the employee to another structural unit (for example, a lawyer who worked in the legal department, transfer to the financial department to advise its employees on taxes and tax optimization, while the employee's functionality in accordance with the employment contract has remained unchanged), etc.

I would like to draw the attention of readers to the following point. When, in practice, you carry out the restructuring of your organization, you must clearly understand in which case you are dealing with a change in the terms of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, in which cases - with a reduction in staff, and in which - you can do something only with the consent of the employee.

Example 4. You want to make two departments - marketing and advertising - one. Most likely, the position of one of the department heads will be cut. The second will be promoted to the position of the head of the marketing and advertising department. You have the right to change the name of his position unilaterally, but the functionality - only if he himself agrees to it. Change the structural unit of all other employees in the manner prescribed by Art. 74 of the Labor Code of the Russian Federation, you have the right.

The procedure for changing an employment contract in accordance with
from st. 74 of the Labor Code of the Russian Federation

The procedure for changing the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, in principle, is not very complicated. The HR specialist must prepare two copies of a notification with a warning about changes in the essential terms of the contract. At the same time, as we pointed out above, in the notification now, in accordance with the new edition of this article, it is necessary not only to indicate the clauses of the employment contract that the employer wishes to correct, but also the reasons that are motivating for the introduction of such changes. You will hand one copy to the employee, and on the other, which you have left, the employee will have to sign the receipt of his copy.

In practice, the question often arises of how to calculate 2 months of the warning period about changing the terms of the employment contract. In order to answer this question, you must refer to Art. 14 of the Labor Code of the Russian Federation. According to it, the course of the terms with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date, which determines the end of the labor relationship. That is, if you notify the employee about the change in the employment contract on the 14th of a certain month, then the calculation of the two-month period will begin on the 15th of this month and, accordingly, the day of dismissal will be the 14th of the corresponding month.

Note. A foreign citizen who has a work permit has the right to independently find a job with an employer.

As a rule, an employee does not immediately express consent or unwillingness to work under new conditions. If we are talking about changing the terms of the employment contract of a sufficiently large number of employees, then ultimately the HR employee may forget who agreed to the new working conditions and who refused them. Moreover, the unwillingness to work in accordance with the new terms of the employment contract is often expressed orally by employees. Therefore, it is better to immediately offer him the appropriate vacancies when warning the employee about the change in working conditions. It should now be, as we already wrote above, all the vacancies of the organization - both the corresponding qualifications of the employee and vacancies that are lower than his qualifications. The only exceptions are those vacancies of the company that are located in another area. You are obliged to offer them if it is stipulated by the collective agreement or agreement. At the same time, it should be remembered that vacancies must correspond to the state of health of the employee. You can either make a separate document in duplicate (what remains in your hands, the employee must sign for receipt), or you can offer vacancies already in the document in which you will notify about changes in the terms of the employment contract. In this case, you can use the following wording: “In the event that you refuse to continue working on new conditions, we can offer you the following vacancies available in the organization at the moment ...“.

Accordingly, if the employee does not agree to change the terms of the employment contract, but is ready to transfer, the latter is drawn up in a standard manner.

If neither the new working conditions suited the employee, nor a suitable position in which he would like to work was found, it is necessary to dismiss the employee under clause 7 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to continue work in connection with a change in the terms of the employment contract determined by the parties).

If the employee agrees to work under the new conditions, then two months after receiving the notification, it is necessary to sign an additional agreement with him to his employment contract. It is worth paying attention to the fact that some lawyers believe that it is possible not to do this.

Their reasoning is that if the employee was initially ready to sign an additional agreement - compliance with the procedure provided for in Art. 74 of the Labor Code of the Russian Federation, it would not be necessary to introduce new working conditions. It would be possible to immediately draw up an addendum to the employment contract and not wait two months. In this case, supporters of this point of view believe, it is important that the employee did not disagree with the change in the terms of the employment contract determined by the parties, which means that the contract is changed automatically and no additional document is required. Nevertheless, in our opinion, the signing of an additional agreement to the employment contract in this case will not be superfluous, as well as the issuance of a corresponding order.

This is a general procedure for changing the terms of an employment contract determined by the parties.

But, as we already wrote above, in Art. 74 of the Labor Code of the Russian Federation, a situation is provided (establishing a part-time day for an employee or part-time work week), when, in the event of an employee refusing to work on new conditions, he must be fired in the manner prescribed by the reduction of staff. Separately, we will not consider the procedure for dismissal due to staff reductions here, since it is beyond the scope of this article. However, let us pay attention to one more controversial issue related to the possibility of the employer introducing a part-time or part-time work week. In accordance with Part 5 of Art. 74 of the Labor Code of the Russian Federation, such a mode of operation can be introduced for a period of up to six months. And after that, employees should, logically, return to their previous work schedule: full-time work with a full work week. But the question is: for how long the employer should return to full-fledged work, how minimal it can be, the legislator, alas, has not been resolved. And in this situation, it is not clear whether the employer has the right to transfer employees to full-time for a short time in order to practically immediately repeat the procedure for warning employees about changes in the terms of the employment contract determined by the parties and the introduction of part-time or part-time work again.

In the event that, for reasons related to changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they may be changed at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, unless otherwise provided by this Code. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In the event that the reasons specified in part one of this article may lead to a mass dismissal of employees, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code for the adoption of local regulatory acts, introduce part-time work (shift) and (or) part-time work week for up to six months. If the employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation. The cancellation of the part-time (shift) and (or) part-time work week before the period 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. Changes to the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the employee's position in comparison with the established collective agreement, agreements.

Legal advice under Art. 74 of the Labor Code of the Russian Federation

Konstantin Semiotrochev

Hello, tell me Article 74 of the Russian Federation is suitable for women with children under 14 years old?

Eduard Khokhlenkov

Hello! Can an employee be reduced by 0.5 rates a year before retirement.

• The answer to the question was given by phone

Bogdan Ugolnikov

The employer issues an order to reduce the official salary, I do not agree. He gives me a notice of a change in salary, where it indicates if I disagree, then I will be fired after 2 months article 77 part 1 paragraph 7 or article 77 part 1 paragraph 1

• The answer to the question was given by phone

Maxim Serganov

How to correctly understand Article 74 of the Labor Code - “the duration of a transfer to another job to replace an absent employee cannot exceed 1 month during a calendar year (from January 1 to December 31). And different comments say there can be as many such transfers up to 1 month.

• The answer to the question was given by phone

Roman Lodochnikov

in how many days is the employer obliged to notify the employee about the change in the schedule? I work in a clothing store and it became interesting. The schedule is drawn up a week in advance, but it so happens that the change is warned a day before the shift. If possible with a link to shopping mall.

• Lawyer's answer:

  I understand that you work in shifts? And the employer changes the shift schedule? If so, then he is obliged to warn about the change in the shift schedule 1 month in advance (. before 19-00 "), this is considered a change in working conditions. In principle, such a change must be notified 2 months in advance (Article 74 of the Labor Code).

Alla Gerasimova

are eligible to reduce the full rate to 0.75 ???. If a person works full-time, can their rate be reduced to 0.75 ??? on what grounds can. And yet, I heard that it seems that if there is a mortgage loan, then they do not have the right to reduce. Is it so???

• Lawyer's answer:

• Christina Denisova

  The employer has notified of a reduction in working hours. Accordingly, the already small salary will decrease .. Is this legal? I do not agree to a salary cut. What is the right thing to do? What are my rights? Looking for another job is not an option.

  • Lawyer's answer:

    The introduction of a part-time regime on the initiative of the employer is permissible only in the case provided for in article 74 of the Labor Code. Namely, if there are changes in the organizational or technological working conditions, and these reasons may lead to mass dismissal of workers. The period for which the reduction of the regime on the initiative of the employer is allowed is strictly limited - it cannot exceed 6 months. The employer is obliged to notify employees of the upcoming changes in the terms of the employment contract. In addition, the reasons for the change need to be communicated. In this case, the employee's consent is not required, you just need to get a signature that the employee is familiar with the upcoming changes. But the refusal must be in writing. The employee has the right not to agree to part-time work. In this case, the employer must, in writing, offer the subordinate another, existing job that the employee will be able to perform taking into account the state of his health, including a lower position or lower-paid work (Article 74 of the Labor Code of the Russian Federation). If there are no vacancies or the employee refuses offers, the employment contract with him is terminated in accordance with clause 7 of part 1 of article 77 of the Labor Code - the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties.

Yaroslav Lobashkov

reduction in salary. is it possible to reduce the salary of working pensioners and part-time workers? Is the procedure the same as for key workers?

• Lawyer's answer:

  "Salary", as you put it, is one of the essential conditions of an 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. Which of the working pensioners will voluntarily agree to lower the "salary"? They, as well as "normal" workers, are covered by the guarantees of the Labor legislation of the Russian Federation. Otherwise - discrimination. However, the owner is a master. This is me about the employer. To optimize the organization's fulfillment of statutory goals and objectives, he can reshape the staffing table, including "salaries". In accordance with Article 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, it is allowed their change at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, unless otherwise provided by this Code. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In this case, the employee, in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation

Anastasia Guseva

And if at the enterprise the director only raises the salary for himself and his relatives, can you somehow pinch him?

• Lawyer's answer:

  The Labor Code of the Russian Federation does not prohibit setting different salaries for employees holding the same position. It is only said that the salary should depend on the qualifications of the employee, the complexity of the work performed by him and the quality of work (Article 132 of the Labor Code of the Russian Federation, Article 132 of the Labor Code of the Russian Federation, Article 135 of the Labor Code of the Russian Federation). These can be bonuses for work experience, education (including knowledge of the language), the amount of work done, etc. In this case, nothing limits the employer. The criteria for which employees are entitled to allowances should be detailed in the collective agreement or other local document. The size of the salary is prescribed in the employment contract as its prerequisite (paragraph 5 of part 2 of article 57, article 135 of the Labor Code of the Russian Federation). As a general rule, an organization can change the mandatory terms of an employment contract (including salary) only with the consent of the employee (Article 72 of the Labor Code of the Russian Federation). In this case, it is necessary to draw up an additional agreement to the employment contract and an order from the manager to change the staffing table. In some cases, the organization has the right to amend the terms of the employment contract without the consent of the employee. This is allowed when the previous conditions (including the size of the salary) cannot be maintained due to: - changes in technology and production technology (for example, the introduction of new equipment, which led to a decrease in the employee's workload); - 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 workload. At the same time, 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 appropriate conditions. This is stated in parts 1 and 8 of article 74 of the Labor Code of the Russian Federation. Therefore, if there is such a discrediting, it is necessary to fight, but not only one, but all. Write to the tax office, to whom the organization is subordinate, to the trade union.

Marina Sergeeva

The main features of the accrual of salary in modern conditions ". Asked to write a work on" The main features of the accrual of salary in modern conditions. "

• Lawyer's answer:

  Write at least about this: The salary of an employee who has worked the norm of time in a month and fulfilled the labor standards (labor duties) should not be less than the minimum wage (minimum wage). From June 1, 2011, the minimum wage is 4,611 rubles. per month. Previously, the minimum wage was equal to 4330 rubles. , that is, it increased by 281 rubles. This is the first change in the minimum wage after January 1, 2009. In their regions, by regional agreements on the minimum wage, the executive authorities of the constituent entities of the Russian Federation have the right to establish a different value, which may be higher than the federal one (Article 133.1 of the Labor Code of the Russian Federation). The structure of wages (wages) includes the following elements: - remuneration for labor; –Compensation payments (for example, additional payments and allowances for work in conditions deviating from normal, work in special climatic conditions, etc.); - incentive payments (bonuses and other incentive payments). This is stated in part 1 of article 129 of the Labor Code of the Russian Federation. The size of the subsistence minimum for the country as a whole is set by the Government of the Russian Federation on a quarterly basis. So, for the first quarter of 2011, the subsistence minimum was set in the following amounts: - per capita - 6473 rubles. ; - for the able-bodied population - 6986 rubles. ; - for pensioners - 5122 rubles. ; - for children - 6265 rubles. Such data are determined by the decree of the Government of the Russian Federation of June 14, 2011 No. 465. The executive authorities determine the subsistence minimum for each region separately. You can find out its value, for example, from the official press or on the websites of the administrations of the corresponding constituent entity of the Russian Federation. This procedure 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 setting different salaries for employees holding the same position. It is only said that the salary should depend on the qualifications of the employee, the complexity of the work performed by him and the quality of work (Article 132 of the Labor Code of the Russian Federation). However, the personal setting of salaries cannot be arbitrary (resolution of the Presidium of the Supreme Court of the Russian Federation of August 31, 1994). Therefore, if an organization sets different salaries for employees holding the same positions, job descriptions should establish different responsibilities for them. And in the staffing table, provide for various categories of positions. For example, you can enter positions: payroll accountant, fixed asset accountant, salesperson, senior salesperson, and so on. You can pay employees different amounts without changing the salary. That is, the salary remains the same for all employees who hold the same position (Article 22, Part 2, Article 132 of the Labor Code of the Russian Federation). But in general, the salary of employees in one position may be different, since it depends, among other things, on allowances and bonuses (Article 135 of the Labor Code of the Russian Federation). In some cases, the organization has the right to amend the terms of the employment contract without the consent of the employee. This is allowed when the previous conditions (including the size of the salary) cannot be maintained due to: - changes in technology and production technology (for example, the introduction of new equipment, which led to a decrease in the employee's workload); - 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 workload. At the same time, 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 appropriate conditions. This is stated in parts 1 and 8 of article 74 of the Labor Code of the Russian Federation. The organization is not entitled to reduce the salaries of employees for reasons not related to organizational and technological changes in working conditions (for example, due to the deterioration of the financial and economic situation), solely on its own initiative. This conclusion follows from part 1 of article 74 of the Labor Code of the Russian Federation.

Anastasia Davydova

They offered to quit on their own or to go to work not in their specialty .. He worked as a milling machine operator. There were 4 people on the site. Due to the lack of work, three were sent to other sites. At this time, I was first on vacation, then on sick leave. When I went to work, I was asked to work in the area where chemicals are used. materials (acetone, resins, etc.). I can't stand SUCH smells, and I just don't want to work there. Officially, there is no harm there - milk, add. vacation, it's all missing. Nevertheless, people work in respirators and rubber gloves - otherwise it is impossible! By the way, there was simply no respirator for me, I work without it. I haven't signed an additional agreement yet, I worked for 2 days. What should I do in my case? Can I take it (additional agreement) home for a more detailed study (consultation)? And if they insist on immediate signing ?! !

• Lawyer's answer:

  “In the case when, for reasons related to changes in the organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, FOR WITH THE EXCEPTION OF CHANGE IN THE EMPLOYEE'S LABOR FUNCTION "(Article 74 of the Labor Code of the Russian Federation). Thus, the employer does not have the right to "force" the employee to sign the "add. agreement ", in which the employee's labor function changes (and this, in your case, in accordance with work in the profession of MILLER __ DISCHARGE) 1. That is, if the employee does not want to work in another profession and does not sign" add. agreement "then it is NECESSARY to write two statements to the employer: 1.1 About payment of downtime due to the fault of the employer, since: according to article 56 of the Labor Code of the Russian Federation" the employer undertakes to provide the employee with work according to the specified labor function. " And according to article 157 of the Labor Code of the Russian Federation, “downtime (article 72.2 of this Code) through the fault of the employer is paid in the amount of at least two-thirds of the average wage of an employee. Downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime. Downtime due to the fault of the employee is not paid. " 1.2 On the refusal to perform any work, except for the milling machine operator, since according to Article 60 of the Labor Code of the Russian Federation, the employer “is prohibited from requiring the employee to perform work that is not stipulated by the employment contract, with the exception of cases provided for by this Code and other federal laws”. In this case, the employee must be prepared for the employer to take measures to terminate the employment contract, that is, to dismiss. ONE condition: the employee SHOULD NOT write of his own free will, let the employer fire him. If the employer acts in accordance with the law, he will dismiss the employee to lay off (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 one month) to apply to the court for illegal dismissal (in payment of compensation for forced absenteeism, etc.). 2 The employee HAS the right to agree to voluntarily perform other work 2.1 permanently (Article 74 of the Labor Code of the Labor Code of the Russian Federation). 2.2 In addition, under Article 72.2. Labor Code of the Russian Federation “By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for up to one year. .. ". ONE SMALL BUT in the same article: "if, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand it and continues to work, then the TERMS OF THE TEMPORARY TERMS OF THE TRANSLATION LOSES AND THE TRANSLATION IS CONSIDERED PERMANENT." Therefore, if the employee does not miss the end, then he has the right to do exactly the same as described in paragraph 1.3 individual and collective protection, the employer does not have the right to demand from the employee the performance of labor duties and is obliged to pay for the downtime arising for this reason in accordance with this Code. The employee's refusal to perform work in the event of a danger to his life and health due to violation of labor protection requirements or from performing heavy work and work with harmful and (or) hazardous working conditions not provided for by the employment contract does not entail disciplinary responsibility ... In the event of harm to the life and health of an employee in the performance of his labor duties, compensation for this harm is carried out in accordance with federal law. "

Margarita Andreeva

Do I have the right to forcibly transfer an employee from day to night shift if the transfer option is not specified ++. in his contract, but the employee opposes this transfer?

• Lawyer's answer:

  I have already answered a similar question. I will also answer: The employee's work schedule, along with the shift in his work, is one of the essential conditions of the employment contract (even if this is not directly recorded in the employment contract, but is determined by the established practice at this enterprise for a specific employee) (Article 57 Labor Code of the RF art. 72 of the Labor Code of the RF). However, the employer can, in order to optimize the organization's fulfillment of the statutory goals and objectives, reshape the staffing table, functional duties (job descriptions) of individual specialists, as well as the schedules and shifts of their work. In accordance with Article 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, it is allowed their change at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance about the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In this case, the employee, in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation, an allowance is paid in the amount of two-week average earnings.

Alina Anisimova

I work in a shop as a salesman at Ip. Within 2 weeks I was informed that the outlet was closing and asked to think about whether I would work. work at another point or leave. I decided to refuse! In 4 days they said that we had to work out two weeks. There is an employment contract, but not all points were fulfilled. I. P. Vacation was not paid, but taxes were paid! What to do? Write a letter of resignation and not work out? The place of detention is not satisfactory. Thanks for answers! I want it for the good, without causing any inconvenience to anyone and according to the law!

• Lawyer's answer:

  An individual employer shall notify the employee in writing about the change in the terms of the employment contract determined by the parties, at least 14 calendar days in advance. At the same time, an employer who is an individual who is an individual entrepreneur has the right to change the terms of the employment contract determined by the parties only if these conditions cannot be maintained for reasons related to changes in the organizational or technological working conditions (part one of Article 74 of this Code) ( ). In this case, the employer did not violate anything. But he breaks everything else. He must terminate the employment contract with you as in the liquidation of the enterprise, having paid everything that is due: 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 notification, you can write a statement of your own free will. In this case, the employer is still obliged to make payments.

Claudia Komarova

can a passport officer perform the work of a lawyer. Ukraine. We have the following situation at our enterprise: according to the staffing standards, until the end of this year there is 0.5 of the rate of a legal adviser and 0.5 of the rate of a passport officer. Since the beginning of 2012, the head office has removed 0.5 of the rate of the legal adviser and leaves 1 rate of the passport officer. Is it possible to impose the duties of a legal adviser in the duties of a passport officer? And in general, does the passport officer have the right to represent the interests of the enterprise in the executive bodies, in court, etc. etc.?

• Lawyer's answer:

  I saw your question a little late, but I will try to answer. A passport officer, like any other specialist, must have: either a Job Description or Functional Responsibilities (it does not matter what the name of this document is). In the named documents, with which employees are familiarized with the signature when hiring them, and which are an integral part of the employment contract, the employee's labor function is revealed and specified. And she is just, this labor function, enshrined in the documents I mentioned above, is one of the most important essential conditions of an employment contract (Article 57 of the Labor Code of the Russian Federation). And, changing the terms of the employment contract determined by the parties is allowed only by agreement of the parties to the employment contract (Article 72 of the Labor Code of the Russian Federation). Conclusion: an agreement of the parties has been reached - it is possible to change (by means of additions) the labor function of the employee, that is, the job description. It additionally introduces the duties (or their specific part) of a lawyer (legal adviser). This is all the more possible to do, since the passport officer, in this case, has the qualifications of a lawyer. As for the issue of representing the interests of the organization outside, at least a cleaner can represent them by the employer's power of attorney, as long as the employer has entrusted it to her and, again, upon obtaining the consent of this cleaner. However, the owner is a master. This is me about the employer. He can, in order to optimize the organization's fulfillment of statutory goals and objectives, reshape the staffing table, 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 changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, it is allowed their change at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance about the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In this case, the employee, in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation, an allowance is paid in the amount of two-week average earnings.

Konstantin Nesmelov

Does the head of a state enterprise have the right to demote a pregnant woman?

• Lawyer's answer:

  Such actions of the manager are not based on the law Position, and, therefore, the Job Description of the employee, which regulates and specifies his job function, is an integral part of the employment contract concluded between the employee and the employer. The position is the most important of the essential conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation), and changes in the terms of the employment contract determined by the parties are allowed only by agreement of the parties to the employment contract (Article 72 of the Labor Code of the Russian Federation, Article 178 of the Labor Code of the Russian Federation, an allowance is paid in the amount of two-week average earnings ...

Denis Bogdashkin

Is there a basis for a reduction in the salary?

• Lawyer's answer:

  The employer, in accordance with the local regulations in force at the enterprise (collective agreement, Regulations on remuneration, Regulations on bonuses, etc.), may decrease bonus, incentive and other payments. But, the official salary ... It is one of the essential conditions of the employment contract (Art. 57 of the Labor Code of the Russian Federation), and changes in the terms of the employment contract determined by the parties are 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 master. This is me about the employer. He can, in order to optimize the organization's fulfillment of statutory goals and objectives, reshape the staffing table, 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 changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, it is allowed their change at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance about the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In this case, the employee, in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation, an allowance is paid in the amount of two-week average earnings.

Nadezhda Zakharova

The head of the organization introduced a piece-rate form of remuneration by order. The head of the organization, by his order, introduced a piece-rate form of remuneration into the organization. Employees with time-based wages filed a petition in court to declare this order illegal and not applicable, since its application would entail a significant reduction in their wages. The court refused to satisfy the workers' claims, believing that the order of the head of the organization is not a legal act, since it is designed exclusively for the circle of employees of the organization. Employees did not give specific examples of violation of their rights, which is why they are not deprived of the opportunity to go to court again when receiving lower wages. Is it possible to recognize the court's decision as legal and reasonable?

• Lawyer's answer:

  The court decision is both illegal and unreasonable, since it was made in violation of the norms of substantive and procedural law, namely: The form of remuneration is one of the essential conditions of the labor contract (Article 57 of the Labor Code of the Russian Federation), and changing the terms of the labor contract determined by the parties 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 master. This is me about the employer. He can, in order to optimize the organization's fulfillment of statutory goals and objectives, reshape the staffing table, 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 changes in the organizational or technological conditions of work (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved, it is allowed their change at the initiative of the employer, with the exception of changes in the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance about the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. In this case, the employee, in accordance with Part 3 of Art. 178 of the Labor Code of the Russian Federation, an allowance is paid in the amount of two-week average earnings. Yes, and here's another thing, madam student ... The reference of the court in the reasoning part of the court decision that the employer's order is not a normative act is sheer nonsense. The named order of the employer is nothing more than a local normative legal act, binding on its employees until it is appealed and canceled.

Mikhail Muchnikov

Can the employer lower the salary ???? and on what basis ???? and on what basis?

• Lawyer's answer:

  Maybe. True, this can be done only two months after the employee was notified of the upcoming changes (Article 74 of the Labor Code of the Russian Federation). In addition, the employee's consent will be required to reduce the salary. Indeed, article 74 of the Labor Code of the Russian Federation allows you to change the terms of an employment contract without the consent of the employee only in exceptional cases. Namely, with a change in technology and production technology and with a structural reconstruction or reorganization of production.

  Article 372 of the Labor Code of the Russian Federation assumes the possibility for the employer to make a decision even in case of disagreement with the representatives of the employees, but without its observance, this decision on a formal basis can be appealed to the state labor inspectorate or to the court. If the changes in the working time regime affect the content of the labor contract concluded with the employee, then the procedure for changing the terms of the labor contract determined by the parties, provided for by Article 74 of the Labor Code of the Russian Federation, applies, that is, the employer must notify the employee in writing no later than two months in advance. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. 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 the Labor Code.

Evdokia Vasilieva

Where do you need to contact if the company shortens the working day?

• Lawyer's answer:

  Complain where you want and as much as you want ... LABOR CODE Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in the organizational or technological working conditions In the event that the reasons specified in part one of this article may lead to mass dismissal of employees, the employer in order to preserve jobs, it has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code for the adoption of local regulations, to introduce a part-time (shift) and (or) part-time working week for up to six months If the employee refuses to continue working on a part-time basis (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation.

  For reasons related to changes in the organizational or technological working conditions In the case when, for reasons related to changes in the organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be saved, it is allowed to change them at the initiative of the employer, with the exception of changing the employee's labor function. The employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, unless otherwise provided by this Code. If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract. In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be terminated in accordance with paragraph 7 of the first part of Article 77 of this Code. © ConsultantPlus, 1992-2013 Therefore, in case of refusal, the employee will be dismissed on the basis and wording of Article 77. 7) the employee's refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code) © ConsultantPlus, 1992- 2013 Upon dismissal on this basis, an allowance is paid: Art. 178 of the Labor Code of the Russian Federation Severance pay in the amount of two-week average earnings is paid to an employee upon termination of an employment contract due to: the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties (clause 7 of the first part of Article 77 of this Code). © ConsultantPlus, 1992-2013 Therefore: the employer in the proposed situation has such a right, the employee can be dismissed in the manner indicated above. Dismissal by agreement of the parties is possible in any situation. Your position is unknown and should be taken into account: Article 75. Labor relations when the owner of the organization's property changes, the organization's jurisdiction changes. Change of ownership of the organization's property is not a basis for terminating employment contracts with other employees of the organization. For a more qualified consultation, I recommend that you seek the help of a lawyer.

Olga Ryabova

Change of the employment contract. Task. Task In April 2006, one of the production teams of the enterprise decided to switch to self-financing. One of the brigade members refused to work under the new conditions. The employer, notifying him of the transition to self-financing and taking measures for employment, in June 2006. Terminated the employment contract with the employee. Is the employer's actions lawful? Give reasons for your answer.

• Lawyer's answer:

  Are legitimate. According to Art. 74 of the Labor Code of the Russian Federation “On the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes, the employer must notify the employee in writing no later than two months, unless otherwise provided by this Code. If the employee does not agree to work under the new conditions, the employer is obliged to offer him another job available to the employer in writing. ” »Art. 77, clause 7 of part 1 The grounds for termination of an employment contract are: the employee's refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

Gennady Lazarko

Can we lower salaries in the staff list ????

• Lawyer's answer:

  In theory, it is possible to downgrade, but in practice it is very difficult. The employer can do this in two ways: by agreement of the parties (Article 72 of the Labor Code of the Russian Federation), or unilaterally (Article 74 of the Labor Code of the Russian Federation). 1. In order to lower 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 remember that this method is very risky. This can generate increased interest in your company from the inspection authorities. These actions will be recognized as legitimate if the decrease in wages is caused by justified reasons, and additional agreements are signed by employees without any pressure on them. 2. In order to lower wages unilaterally, the rules stipulated by Article 74 of the Labor Code must be complied with. The employer is obliged to notify the employee in writing not later than two months in advance about the upcoming changes in the terms of the employment contract determined by the parties, as well as on the reasons that caused the need for such changes. With each of the employees who agree to continue working on the new payment terms, you must conclude an additional agreement to the employment contract, and those who do not agree to offer another job; and only 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 the Labor Code of the Russian Federation.

Gennady Yaparov

The rate is reduced to 0.1 units. Is this a reduction or change in the terms of the employment contract?

• Lawyer's answer:

  If there was a change in the staffing table, that is, in the SR the rate was reduced to 0.1, then this is a reduction. Perhaps the material from the journal "Personnel business" (№3, 2009) will help you figure it out: Question. Part-time or cutbacks? To reduce personnel costs, the company's management made a decision: to transfer part of the employees to part-time jobs. Appropriate changes were made to the staffing table. The workers were advised that they were given four-hour part-time work and that their pay was cut in half. How legal is it? Answer. Let's figure it out. Let's see what actually happened: the reduction of certain positions by half, or the establishment of a part-time regime for individual workers. Since in this case there is a substitution of concepts. So, if there was a reduction (for example, five employees were reduced by 0.5 rates: the staffing table had 40 staff units, it became 37.5), then the employee whose position was reduced by part-time should be notified in accordance with the established procedure not about the transfer to part-time work, and on the reduction of his position by 0.5 rate. Now, if there were no reductions in the staffing table, and the issue of lowering the size of an employee's wages (with a reduction in working hours) would remain relevant, then we would notify employees about the introduction of part-time work. However, when switching to part-time mode, things are not so simple. It should be remembered that unilaterally, in accordance with article 74 of the Labor Code, such a regime can be established only: in order to preserve jobs. That is, this is only possible if changes in organizational or technological working conditions that have occurred in the organization threaten with 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 define part-time work. However, as follows from Article 93 of the Labor Code, incomplete time should be considered as the duration of which is less than the normal duration of working hours established for the employee. If, for example, an employee is assigned a 5-day working week with an 8-hour working day, then introducing a four-hour working day for him (with pay proportional to the hours worked) will be a transfer to part-time work. If he is transferred to part-time, then a 4-hour working day will be the norm for him. Therefore, you did the wrong thing. In your case, it was necessary to notify each employee about the reduction of his part-time and propose a transfer to the remaining part-time with an indication of the new mode of work and remuneration.

Ksenia Vorobyova

Refusal to transfer! Please tell me what to do? A friend works in a chain of stores, her outlet is being closed .. There was no notification for 2 months as expected. For three weeks they brought some kind of piece of paper, in which it was written that it would be transferred from August 26, due to the closure of the outlet. And where, for what position and with what salary, nothing was written. A few days later, she was offered 4 jobs orally by phone, but with a transfer to another area (from the Moscow region they are now offering to ride to Moscow) and with a demotion (from administrator to seller) and, accordingly, a loss in salary. But there was no written proposal. And today she was offered to write a statement of her own free will, since she verbally refused to be translated. How best to act for her in this situation. And is it worth writing such a statement, if not, what is the best way to write it? Help me please!! !

what are the reasons for dismissal

• Lawyer's answer:

  everything? See Labor Code Article 77. General grounds for termination of an employment contract The grounds for termination of an employment contract are: 1) agreement of the parties (Article 78 of this Code); 2) expiration of the employment contract (Article 79 of this Code), except for cases when the employment relationship actually continues and neither of the parties demanded their termination; 3) termination of the employment contract at the initiative of the employee (Article 80 of this Code); 4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code); 5) transfer of the employee at his request or from his consent to work for another employer or transfer to elective work (position); 6) the employee's refusal to continue work in connection with a change in the owner of the organization's property, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code); 7) the employee's refusal to continue work in connection with a change in the conditions specified by the parties viy of the labor contract (part four of Article 74 of this Code); 8) the employee's refusal to transfer to another job that is necessary for him in accordance with the medical opinion issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the appropriate work (parts three and four of Article 73 of this Code); 9) the employee's refusal to transfer to work in another locality together with the employer (part one of Article 72.1 of this Code); 10) circumstances beyond the control of the will of the parties (Article 83 of this Code) 11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code). Article 81. Termination of an employment contract at the initiative of the employer An employment contract may be terminated by the employer in the following cases: 1) liquidation organization or termination of action an individual entrepreneur; 2) reduction of the number or staff of employees of an organization, an individual entrepreneur; 3) inconsistency of an employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification; 4) change of the owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant ); 5) repeated non-performance by the employee without good reason of his labor duties, if he has a disciplinary penalty; 6) one-time gross violation of labor duties by the employee: a) truancy, that is, absence from the workplace without good reason throughout the working day (shift), regardless of his (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift); b) the appearance of the employee at work (at his workplace or on the territory of the organization - the employer or facility , where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication; c) disclosure of a secret protected by law (state, commercial, official and other) that has become known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee; d) committing at the place of work theft (including small) of someone else's property, embezzlement, deliberate destruction or damage established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses; e) violation by the employee of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed grave consequences (an accident at work

Maria Mikhailova

Labor law issue. Does the employer have the right to transfer the employee for one month to other work without his consent, in connection with the arisen production need to prevent damage to parts, while maintaining wages? Moreover, will the dismissal of an employee be legal if he does not go to work due to disagreement with the transfer ???

• Lawyer's answer:

  In case of industrial necessity, the administration has the right to temporarily, for a period of up to one month, transfer its employee to another job. Even if such a transfer does not meet the terms of the employment contract. This is stated in article 74 of the Labor Code of the Russian Federation. The same article contains a list of cases of production necessity. Please note: this list is comprehensive. At the same time, it should be emphasized that a prerequisite for classifying a particular reason as a production necessity is its exclusivity and unpredictability. In particular, temporary transfer is allowed to prevent catastrophes, accidents or natural disasters, as well as to eliminate their consequences. In addition, it is possible to transfer an employee in order to prevent an accident, downtime, or to replace an absent employee. In addition, the Labor Code of the Russian Federation establishes a number of restrictions on temporary transfers. Firstly, such a transfer is possible only within the framework of the organization with which the employee has entered into an employment contract. Secondly, the salary in a new job should not be lower than the average salary in the previous position. Thirdly, the work to which the employee is transferred should not be contraindicated for him for health reasons. And finally, as we have already noted, it is possible to temporarily transfer an employee to another job for a period not exceeding one month during a calendar year. To temporarily transfer an employee to another job, his consent is not required. However, this does not apply to cases where the new job is of lower qualifications. Here it is necessary to obtain written consent from the employee for such a transfer. Remuneration Transfer to another job. Relocation Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality together with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by parts two and three of Article 72.2 of this Code. At the written request of the employee or with his written consent, the employee may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (paragraph 5 of the first part of Article 77 of this Code). It does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, if this does not entail changes in the terms of the employment contract determined by the parties. Article 306. Change of the terms of the employment contract by the employer, determined by the parties. It is prohibited to transfer and transfer the employee to work that is contraindicated for him for health reasons. An individual employer shall notify the employee in writing about the change in the terms of the employment contract determined by the parties, at least 14 calendar days in advance. In this case, an employer who is an individual who is an individual entrepreneur has the right to change the terms of the employment contract determined by the parties only if these conditions cannot be maintained for reasons related to changes in the organizational or technological working conditions (part one of Article 74 of this Code).

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

The employer is obliged to notify the employee in writing not later than two months in advance of the upcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, unless otherwise provided by this Code.

If the employee does not agree to work in the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account his health conditions. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or refusal of the employee from the offered work, the employment contract shall be 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 lead to mass dismissal of employees, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code for the adoption of local regulations , introduce part-time work (shift) and (or) part-time work week for up to six months.

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

The cancellation of the part-time (shift) and (or) part-time work week before the period 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.

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

Comments to Art. 74 of the Labor Code of the Russian Federation

1. The employer has the right to unilaterally change the terms of the employment contract if there is a combination of the following conditions: 1) there have been changes in the organizational or technological working conditions, i.e. changes were made to the technique and production technology, etc .; 2) in this regard, the previous terms of the employment contract cannot be retained; 3) changes in the terms of the employment contract do not relate to: profession, specialty, position, qualifications, specific type of assigned work; 4) the employee is notified by the employer in writing not later than 2 months in advance. about the upcoming change in the terms of the employment contract; 5) the reasons for changing the terms of the employment contract have been given to the employee; 6) changes in the terms of the employment contract do not worsen the position of the employee in comparison with the collective agreement, agreements.

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

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

4. In the absence of the specified work or refusal of the employee from the proposed work, the employment contract is terminated in accordance with clause 7, part 1 of Art. 77 TC.

5. When introducing a part-time (shift) and (or) part-time working week, as well as in case of suspension of production, the employer is obliged to notify the employment service in writing within 3 working days after the decision to carry out the relevant measures is taken (Art . 25 Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment in the Russian Federation").

1. In accordance with Part 1 of Article 74 of the Labor Code of the Russian Federation, the employer has the right, in connection with changes in the organizational or technological working conditions in the organization, to unilaterally change the terms of the employment contract determined by the parties upon its conclusion, with the exception of a change in the employee's labor function.

Since the commented norm connects the possibility of changing (at the initiative of the employer) of the terms of the employment contract determined by the parties with strictly defined reasons, the employer is obliged to provide 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 technology and production technology , improvement of workplaces on the basis of their certification, structural reorganization of production) and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the change, at the initiative of the employer, of the terms of the employment contract stipulated by the parties cannot be recognized as legal (see paragraph 21 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

2. The employer is obliged to notify the employee in advance about the forthcoming change of the terms of the employment contract determined by the parties, as well as the reasons that caused the need for such changes, no later than 2 months before their introduction. Notification must be made in writing.

If the previous conditions of the employment contract cannot be maintained, and the employee does not agree to continue working in the new conditions, the employer is obliged to offer him in writing another job that he has that corresponds to his qualifications and state of health. If there is no such job, the employer is obliged to offer the employee an existing vacant lower position or lower-paid job, which the employee can perform in accordance with his qualifications and state of health. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. That is, it means that the employer is obliged in this situation to offer the employee appropriate vacancies not only directly in the organization in which the employee is employed, but also in its structural divisions, if they are located in the same area. If vacancies are available in structural divisions located in other localities (for example, in a branch or representative office of an organization), the employer is obliged to offer them, if this is provided for by the collective agreement, agreements, labor contracts.

If the employer does not have an appropriate job, as well as if the employee refuses to offer him another job, the employment contract with him on this basis is terminated (see comments to Art. 77). Upon dismissal of employees on this basis, they are paid severance pay in the amount of 2-week average earnings (part 3 of article 178 of the Labor Code).

In the event of a dispute about the legality of the termination of the employment contract, the employer is obliged to prove the impossibility of maintaining its previous conditions. If this circumstance is proved, but the employee is dismissed under clause 7 of Art. 77 of the Labor Code without 2 months' notice about changing the terms of the employment contract, the court, when considering a dispute, according to established judicial practice, may change the date of dismissal in such a way that the employment relationship was terminated on the day of the expiration of the 2-month period. If the employee was warned about changes in the terms of the employment contract, but was dismissed due to the introduction of new working conditions before the expiration of the 2-month period, the court may change the date of dismissal, taking into account the time remaining before the expiration of the specified period.

During the period for which the employment contract was extended due to the change in the date of its termination, the employee must be reimbursed for the lost earnings.

3. Part 5 of Article 74 of the Labor Code of the Russian Federation establishes a special procedure for changing the terms of an employment contract at the initiative of the employer in cases where changes in organizational or technological working conditions may lead to mass dismissal of employees.

The criteria for mass dismissal are determined in sectoral and (or) territorial agreements (part 1 of article 82 of the Labor Code). When developing them, taking into account the territorial and sectoral characteristics of the development of the economy and the level of unemployment in the region, the criteria for mass layoffs established by Decree of the Government of the Russian Federation of February 5, 1993 No. 99 "On the organization of work to promote employment in conditions of mass layoff" ( SAPP RF. 1993. N 7. Art. 564). In accordance with it, the main criteria for mass layoffs are indicators of the number of laid off employees in connection with the liquidation of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:

• a) liquidation of an organization of any organizational and legal form with a number of employees of 15 or more people;
• b) reduction in the number or staff of the organization's employees in the number of:
  • 50 or more people within 30 calendar days;
  • 200 or more people within 60 calendar days;
  • 500 or more people within 90 calendar days;
• c) the dismissal of employees in the amount of 1% of the total number of employees in connection with the liquidation of an organization or a reduction in the number or staff within 30 calendar days in regions with a total number of employed less than 5 thousand people.

4. If changes in organizational or technological working conditions may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time working regime (shift), but only for a period not exceeding 6 months. The opinion of the elected body of the primary trade union organization is taken into account in the manner prescribed by Art. 372 of the Labor Code for the adoption of local regulations (see comments to it).

Employees must be notified by the employer in writing about the introduction of part-time work in these cases, as well as about changes in other conditions provided for by the employment contract, no later than 2 months before its introduction.

However, if the employee refuses to continue working on a part-time basis (shift), the employment contract with him is terminated not under paragraph 7 of Art. 77 of the Labor Code, and according to clause 2 of part 1 of Art. 81 TC, i.e. according to the rules of staff reduction or the number of employees of the organization. Upon termination of the employment contract in this case, the employee is provided with all guarantees and compensations provided for persons dismissed in connection with a reduction in staff or the number of employees (see comments to article 81).

5. The law establishes the deadline for which a part-time (shift) regime can be introduced - 6 months. Within this period, its specific duration is established. After the expiration of the 6-month period, workers must be transferred to their previous work schedule.

The cancellation of the part-time regime before the expiration of the period for which it was established is carried out 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 terms of an employment contract stipulated by the parties for reasons related to a change in organizational or technological working conditions is not allowed if this change worsens the employee's position in comparison with the terms of the collective agreement or agreement.