Amendment of the employment contract at the initiative of the employer. Changing the terms of the employment contract determined by the parties. Sample letter of resignation

ST 74 of the Labor Code of the Russian Federation

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

The employer is obliged to notify the employee in writing not later than two months, unless otherwise provided by this Code.

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

In the absence of the specified work or the employee's refusal of the proposed work, the employment contract is terminated in accordance with.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established for the adoption of local regulations, to introduce a regime 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. At the same time, the employee is provided with appropriate guarantees and compensation.

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

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

Commentary on Art. 74 of the Labor Code of the Russian Federation

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

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

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

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

Technological and organizational changes may result in changes in the terms of the employment contract, while the employee's labor function remains the same. Since the basis for applying the rules established by the commented article 74 of the Labor Code of the Russian Federation are the specific circumstances determined by this article, in the event of a dispute, the employer must prove the existence of these circumstances, i.e. changes in organizational or technological working conditions. Otherwise, the actions of the employer aimed at changing the terms of the employment contract will be declared illegal.

In this regard, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure, the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the worker in comparison with the conditions collective agreement, agreements. In the absence of such evidence, the termination of the employment contract due to or the change in the terms of the employment contract determined by the parties cannot be recognized as legal (clause 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation).

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

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

The employer - an individual is obliged to notify the employee in writing about the change essential conditions employment contract at least 14 calendar days in advance (see to it).

The employer - a religious organization has the right to make changes to the content of the employment contract, subject to a written warning of this to the employee at least seven calendar days before their introduction (see to it).

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

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

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

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

As follows from the commented article 74 of the Labor Code of the Russian Federation, the employer is obliged by law to offer the employee the vacancies he has in the given area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements or labor contract. At the same time, the employer has the right to offer any vacancy to the released employees, regardless of its location.

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

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

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

If the employee refuses to continue working on these conditions, the employment contract is terminated with the provision of appropriate guarantees and compensations to the employee (see Art. 81, Labor Code of the Russian Federation and commentary to them).

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

At present, the criteria for mass layoffs are determined in industry and (or) territorial agreements, therefore, the rules provided for by the said Regulations apply only if there are no relevant provisions in the agreements (see also the commentary to it).

For the procedure for taking into account the opinion of the elected body of the primary trade union organization, see the commentary to it.

6. The rules of parts 5 and 6 of the commented article 74 of the Labor Code of the Russian Federation are not universal in nature: a) their application is the right, but not the obligation of the employer; b) they are applied in cases of mass dismissal of workers; c) they are of a temporary nature, since they are applied “in order to preserve jobs” (i.e. it is assumed that the circumstances that led to the reduction in working hours are of a transitory nature and after their elimination, employees will be assigned a working time regime stipulated by the employment contract) .

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

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

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

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

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

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

E.A. Shapoval, lawyer, Ph.D. n.

We change the employment contract if working conditions have changed

The procedure for changing the employment contract at the initiative of the employer when working conditions change

The court decisions mentioned in the article can be found: "Judicial practice" section of the ConsultantPlus system

In a difficult economic situation, employers often unilaterally change the terms of employment contracts with employees (for example, reduce the size of tariff rates or salaries, divide the employee's salary into two components - a constant (salary) and a variable (bonus) part, reducing the salary, introduce an incomplete working time, change the mode of operation), referring to a change in working conditions.

However, if the employer changes the employment contract with the employee without observing the rules established by the Labor Code of the Russian Federation, additional costs may arise instead of savings if the court decides in favor of the employee.

When is it possible to change the terms of an employment contract and how to arrange it?

When can an employment contract be changed?

The absence or decrease in demand for manufactured goods, a decrease in the volume of orders, an increase in prices for raw materials, materials, energy carriers in themselves are not reasons for changing the terms of an employment contract at the initiative of the employer Determination of the Moscow Regional Court dated September 14, 2010 No. 33-17729; Review of the cassation practice of the Armed Forces of the Republic of Komi in civil cases for May 2009. But these circumstances may force the employer to change working conditions. Then the employer can offer the employee a change in the terms of the employment contract if three conditions are met Art. 74 Labor Code of the Russian Federation:

• organizational or technological working conditions have changed. Technological changes include, in particular, the introduction of new technologies, more modern equipment and mechanisms. In a crisis, they are less likely because they require additional costs.

More often employers refer to organizational changes. This is, for example, a change in the structure of the organization (in particular, the merger structural divisions, redistribution of functions between departments), changing the operating mode of the organization (for example, the store worked around the clock, and now it will work from 9.00 to 23.00).

Sometimes employers also refer to structural changes as a change in the staffing table, internal labor regulations, and the wage system. As explained to us in Rostrud, such changes in themselves cannot serve as a reason for changing employment contracts if they are not related to organizational or technological working conditions. You can read more about the position of Rostrud on this issue in an interview with the Deputy Head of the Federal Service for Labor and Employment at,;

• such changes in working conditions entail a change in the terms of the employment contract with employees (for example, the organization’s working hours change, and with it the employer is forced to change the working hours of employees);
• the work function of the employee does not change. That is, the employee continues to perform work in his previous position, profession or specialty. If a change in working conditions entails the need to change the labor function of an employee, then this is a transfer to another permanent job at Art. 72.1 of the Labor Code of the Russian Federation. This means that in case of refusal of such a transfer, if the employer cannot retain the employee’s previous position, it is necessary to reduce the number or staff of the employee in p. 2 h. 1 art. 81 of the Labor Code of the Russian Federation.

How to act in different situations when reducing staff and how to apply for it, read:,

If at least one of the conditions is not met, but at the same time the employer worsens the terms of the employment contract with the employee (for example, reduces wages, establishes part-time work, which also leads to a reduction in wages), then the court, if the employee applies there, may oblige the employer to restore previous terms of the employment contract Clause 21 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2. For example, in the event of a reduction in wages, the court may oblige the employer to pay the lost wages from Cassation ruling of the Supreme Court of the Udmurt Republic dated May 30, 2011 No. 33-1880/11 and compensation for the delay in its payment in the amount of at least 1/300 of the refinancing rate for each day of delay and Art. 236 of the Labor Code of the Russian Federation.

How to submit changes

If these three conditions are met, then you must act like this Art. 74 Labor Code of the Russian Federation.

STEP 1. We draw up a change in organizational or technological working conditions.

The procedure depends on where the variable working conditions are fixed.

If a decision is made to enlarge or abolish certain structural units, then by order of the head, changes are made to staffing or a new staffing table is approved. When changing the operating mode of the organization by order of the head, it is necessary to make changes to the internal labor regulations (PWTR). If organizational or technological changes lead to a change in the remuneration system, then by order of the head, changes must be made to the regulation on remuneration.

If the organization has a trade union, then when making changes to the PWTR, the regulation on wages, other local regulations, it is necessary to follow the procedure for taking into account the opinion of the representative body of the employee in Art. 372 of the Labor Code of the Russian Federation.

STEP 2. We notify the employee in writing:

• what conditions of the employment contract are being changed;
• about the reasons for changing the employment contract.

It can be formulated like this.

In accordance with Art. 74 of the Labor Code of the Russian Federation, we inform you that in connection with the decision of the director of Pervotsvet LLC to change the operating mode of Pervotsvet LLC and the order of the director dated 03/02/2015 No. 10 "On Amendments to the Internal Labor Regulations of Pervotsvet LLC" From May 15, 2015, the working hours established by your employment contract will be changed. You will be set a working day from 15.00 to 24.00. Other terms of the employment contract do not change.

The notice must be given to the employee at least 2 months before the introduction of the changes. Art. 74 Labor Code of the Russian Federation. If the employer is an entrepreneur, he must send such a notice to employees at least 2 weeks in advance and Art. 306 of the Labor Code of the Russian Federation. These are the minimum terms. Maximum terms warnings are not set.

It is better to make a notification in two copies: one to transfer to the employee, the other with the signature of the employee on familiarization with the indication of the date to keep.

If an employee refuses to receive notification, draw up an act about this in the presence of at least two other employees.

In what period and in what form the employee can express consent or disagreement to change the contract, we were told in Rostrud.

FROM AUTHENTIC SOURCES

Deputy Head of the Federal Service for Labor and Employment

“The employee must inform about his decision no later than 2 months from the date of notification. The employer is not entitled to reduce this period unilaterally. The consent of the employee to continue work can only be expressed by signing an additional agreement to the employment contract.

STEP 3. Your next steps depend on the situation.

SITUATION 1. The employee agrees to change the employment contract. Then you have to make a deal with him. supplementary agreement to the employment contract, in which it is necessary to include the amended conditions.

When does such an agreement enter into force?

FROM AUTHENTIC SOURCES

“A two-month period is given to the employee in order to prepare for such changes. If the employee agrees to continue working, an additional agreement to the employment contract is concluded between him and the employer, which comes into force, as a rule, from the date of signing. Thus, the parties may agree to change the terms of the contract before the expiration of 2 months in” .

Rostrud

Accordingly, from the date of signing the additional agreement, the employee must start working in the new conditions.

Can an employee who agreed to change the employment contract then revoke his consent?

FROM AUTHENTIC SOURCES

“The consent of the employee to continue working under the changed conditions is recorded in the additional agreement signed by him to the employment contract. After signing an additional agreement, he can initiate the issue of terminating the employment contract on appropriate grounds. If the additional agreement is not signed, he has the right to refuse to continue work before the expiration of the notification period.

Rostrud

SITUATION 2. The employee does not agree to change the terms of the employment contract. The employee's refusal to continue working can be recorded, for example, on a copy of the notice, which remains with the employer.

Then the employee must be offered in writing a transfer to another available job in the same locality, corresponding to his qualifications or requiring a lower qualification, which he can perform taking into account the state of health. The employee must express his consent to the transfer no later than 2 months from the date of notification of the change in the employment contract. If an employee:

• <или>agree to the transfer, then we conclude an additional agreement with him. On the basis of this agreement, we issue a transfer order (as a basis, you can take the form No. T-5 approved Decree of the State Statistics Committee dated 05.01.2004 No. 1);
• <или>does not agree to the transfer, and also if you do not have a job that can be offered to him, then we dismiss him after 2 months from the date of delivery of the notice of changes in the terms of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation. This period begins to be calculated from the day following the day the notice was delivered to the employee. For example, the notice was given to the employee on March 16, 2015. This means that we start counting 2 months from March 17, 2015. Therefore, the employee can be fired after these 2 months, that is, May 17, 2015. Since the day of dismissal falls on a day off, then the employee must be fired on the next working day Art. 14 Labor Code of the Russian Federation.

An employee who does not agree to a change in the contract may ask to be dismissed even before the expiration of the two-month notice period.

FROM AUTHENTIC SOURCES

“The employee has the right to terminate the employment contract at any time by submitting an appropriate letter of resignation according to own will. The employee should be dismissed in connection with the refusal to continue work no earlier than the expiration of a two-month period from the date of written notification.

Rostrud

On the day of dismissal, in addition to the usual payments, he also needs to pay a severance pay in the amount of two weeks of average earnings.

Changing an employment contract is a rather complicated event that one has to deal with relatively often. It is controlled by various norms of labor law, so you can change the terms of the contract only if you follow a certain legally established procedure. To know what you need to be prepared for if a notice comes in about a change in the conditions of a working city, as well as in what order this aspect of work activity is performed, you need to deal with each stage of this process in order.

Changing the employment contract and the grounds for it

Changing the terms of an employment contract implies the introduction of amendments to already existing and properly formalized legal relations. Such a process is possible and established by law - this is discussed in Ch. 12 of the Labor Code of the Russian Federation. There are also four main types of change in the terms of the contract:

• Transfer to another position or another structural unit;
• Changing the terms of the employment contract determined by the parties;
• The enterprise makes structural organizational changes, such as a change in the person who has the right of ownership of the property of the organization;
• The head of the enterprise decided that one of the employees should be removed from work.

In the event of the dismissal of an employee, no changes are made or drawn up directly in the text of the employment contract.

Changing the terms of the employment contract by agreement of the parties

Usually, in order to make changes to the terms of an employment contract, it is necessary to obtain the consent of both parties who signed this document. But in some individual cases, changing the terms of the employment contract at the initiative of the employer is also possible. He can independently change the conditions if the company has changed the technology used, introduced new technology or in production there is a reorganization of a structural type. The only thing that the employer cannot change in this case is what functions the employee performs in his position.

When it became necessary to change the conditions prescribed in the employment contract, the head of the enterprise is obliged to notify the employee in writing. Such a notice has minimum term- it is equal to two months before the changes indicated in it will take effect.

In Art. 306 of the Labor Code of the Russian Federation states that if the terms of the contract change individual, then this period is different. They are required to notify their employees in writing of upcoming changes two weeks in advance. These notices should not only mention that the conditions have changed, but also why they have changed. Any change that is going to be made to the terms of the employment contract must have a good reason.

Sometimes an employee, having familiarized himself with the new conditions, may refuse to work after their implementation. In this case, the head of the enterprise must offer the person another position in writing. This can be either a vacant job or a position that will correspond to the qualifications of the employee. Also, the employer can offer a position that is lower in the hierarchy of the organization or lower paid - the main thing is that it be free. And he is obliged to offer the employee all the vacant positions that he currently has. And if this is possible under the terms of a collective agreement or other similar agreement, then the head of the enterprise can give the employee the right to choose among vacancies that are located in another locality or structural unit.

But sometimes it happens that there is no agreement between the employee and the employer on this issue. Perhaps the head of the enterprise does not have vacancies, or those that are, did not fit the employee. In this case, as indicated in paragraph 7 of part 1 of article 77 of the Labor Code of the Russian Federation, the employment contract is terminated, the employee is paid his mandatory dismissal benefit.

How does the process of changing the employment contract at the initiative of the employer look like?

In order to change the essential terms of the employment contract at the initiative of the employer, he must have sufficient grounds for this. The head of the enterprise can change the work contract in two cases - the whole company, or any of its branches, has undergone major changes in the structure itself, or if there have been noticeable changes technical process production. And even in this case, the employer cannot change the labor function of the worker.

Under change organizational type the following changes are implied:

• One or more structural divisions of the organization were separated, or vice versa, merged.
• One of the branches or representative offices was liquidated at the enterprise.

Under change specifications Labor most often includes changes that affect technology or the technology of production itself. Both of these factors are often updated, some new units are introduced that require appropriate training, or the way goods are produced changes.

The legislation has a separate procedure that allows for such changes. It is conditionally divided into several stages.

1. The first stage - the head of the enterprise determines which of the employees will be affected by technical or organizational changes introduced in production. At the same stage, he analyzes the text of the employment contract itself and determines which parts need to be changed.
2. The second stage - the decision to change is made and the head of the enterprise begins to notify employees in writing that it will soon come into force.
3. If the employee does not give his consent to work in new, changed conditions, then the third stage appears in the procedure. The employer begins to offer the employee available vacancies.
4. And the last, fourth stage is the change and termination of the contract. The employee did not find a position that would suit him, and he does not want to work under the new conditions. So the employer, using the conditions prescribed in paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, terminates the contract and pays a dismissal allowance.

Changing the employment contract at the initiative of the employee

An employee can also act as a person initiating a change in an employment contract. In particular, he has the right to write a statement addressed to the employer with a request to change any of the working conditions. This statement and possible changes may apply to any aspect of the employment relationship, in particular:

• Payroll and salary systems tariff rate or coefficients.
• Working hours and work schedule.
• Labor mode.
• Places of performance of labor duties.
• Direct work responsibilities and production standards.

At the same time, it is unacceptable to make such changes unilaterally. That is, the employee must in any case obtain the consent of the employer and then draw up a bilateral supplementary agreement to the employment contract.

The only situation when the employer is obliged to satisfy the employee's application to change the employment contract at the initiative of the employee is the situation when such an application is sent by a pregnant employee. In particular, he does not have the right to refuse her to establish a reduced working day, however, he can accordingly change the mechanisms for calculating salaries in proportion to the hours actually worked.

How does the employment contract change if the owner has changed

A person who has just received ownership of the property of the organization has the opportunity to terminate employment contracts with some employees. This is, first of all, the head of production. Also subject to this right is Chief Accountant. The legislation allocates three months for this procedure. The term begins to count from the moment the new owner acquires ownership rights to the property of the organization. These categories of workers, like any other, need to be compensated. Its size is set in paragraph 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation and it says that the severance pay should be equal to at least three average salaries.

The person who has obtained ownership of the organization can only fire the people listed above. No other employees of the enterprise can be dismissed for this reason. But if they refuse to continue their work due to the fact that the organization has changed its owner, then such workers can be fired in full accordance with paragraph 6 of Art. 77 of the Labor Code of the Russian Federation.

Also, the new owner may decide to carry out such a procedure as reducing the workforce. But he will be able to do this only after he passes state registration transfer of ownership.

Other frequent cases of organizational changes that may affect the terms of an employment contract are a change in subordination or reorganization, merger or transformation of an organization. This cannot be a sufficient reason to terminate an employment contract with any of the workers in a production that is undergoing organizational changes.

The legislation does not specify the exact period during which an employee can give a new manager a refusal to work in changed working conditions. This means that, in principle, the employee can file this waiver at any time. But usually they use the same period given above - 3 months from the day the changes entered into force.

Suspension from work

There are certain conditions under which the head of the organization is obliged to remove the employee from work. This list includes the following cases:

In all of the above cases, the head of the organization has the full right, and even the obligation, to remove the employee from work. The period of such suspension should be equal to the period that will be needed to eliminate the difficulty that interferes with the work of the employee. And while the employee is suspended, he, of course, does not receive wages, unless there is a direct fault of the employer in the suspension.

An employee can be suspended from work for a longer period than two months. This can be done if the employee refuses to switch to a new workplace or work under modified terms of an employment contract. In this case, the employer can either dismiss him, using clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation, or agree on a temporary suspension. The term of such suspension may be such as the parties to this conflict of interest can agree on. Typically, such removal from office is no more than four months.

It is worth remembering that an employee who has been suspended from work has every right to go to court. In this case, he has the opportunity to prove that the actions of the leader were illegal and are a violation of his labor rights. If he proves that the head of the enterprise suspended him from work without good reason, or if the procedure established by law was violated, then the person responsible for this will be found guilty. And given that for the entire time the employee was suspended from work, he was not paid wage, then the employer will be forced to pay everything that the wrong one did not receive.

Also, in addition to the payment of lost wages, the head of the organization and his closest assistants may be recognized as administrative violators. And the most common reason why an employer can be found guilty of illegal suspension is that the boss used a reason for this that is not on the official list established by law. More often among the mistakes made by employers in relation to suspension, there is a violation of procedure.

The procedure for changing the terms of an employment contract

In any employment contract there are conditions that, in the vast majority of cases, do not change. If we bring these conditions to general view, then you get the following:

• The location of the enterprise where the employee will work. In the same column, the employer must clarify the name of that structural unit.
• The functions that the employee will perform in the position. Usually a position has a large set of responsibilities - this helps to save the employee from extra work. And, in particular, from unfounded claims on the part of the head.
• The date on which the employee began or will begin employment. This is a very important point, because it is from this moment that the employee begins to receive wages.
• Conditions of labor payments. This paragraph indicates on which system the employee will be paid wages and base salary.
• If there is a contract between the employee and the employer fixed-term contract, you must also specify the expiration date.

Other terms of the employment contract may change in the course of work.

There are two main ways in which you can change the terms of an employment contract.

• If the consent of all parties to the contract is reached.
• On the initiative that comes from the employer.

If the terms of the employment contract are changed through an initiative coming from both parties, then the procedure clearly established in the legislation must be followed.

• First, the parties that have reached an agreement must draw up and conclude an additional agreement to the contract. It will act as an addition to an existing document, which means there is no need to conclude a new one.
• It is necessary to draw up a document in two copies - both for the employee and for the employer, respectively, Art. 61 of the Labor Code of the Russian Federation.
• Using the concluded and executed additional document, the employer must sign an order stating which parts of the existing contract have been changed and how.

Even if the employee agrees with the changes proposed to him, but at the same time there are no signatures on the additional document, and the order has not been issued, the employee should not start work under the new conditions.

About how the change in the terms of the contract at the initiative of the employer is going on, it was written above. The employer issues an appropriate order for the enterprise, sends a notice to everyone affected by these changes. Then - the employer receives a written consent or a written refusal, and in case of consent - an additional agreement is drawn up to the contract and an order is issued.

When the agreement of the parties is reached, all steps are taken and the terms of the employment contract are changed, the process still does not end. The fact is that such a change will affect not only the work activity of the employee, but also other regulations, such as:

• Collective agreement;
• Rules governing the internal regulations of the enterprise;
• Regulations relating to payroll, bonuses and incentives.

After the changes are made to the contract, and all documents are signed, the head of the enterprise must without fail familiarize the employee with the updates that have been made to these papers.

The written notification that will be sent to employees affected by changes in the employment contract looks like this:

• The general essence of the ongoing changes;
• How will the existing order of the employee's labor activity change;
• A clear indication of which paragraphs of the document will be changed.

Also, the head of the enterprise needs to draw up an official order that the changes are taking place and they will soon come into force. Such a document must contain information such as:

• The reasons that forced the boss to make changes to the existing document;
• An order stating that all changes made to the contract must be reflected in regulations local character;
• The date when all changes will take effect.

Once the employer agreed with the employee the rules that the employee will perform a specific job in a specific place and under appropriate conditions. Formally speaking, the parties entered into an agreement, which is called () in the Labor Code.

Like any written agreement, this document contains a number of provisions.

Some items are called essential or mandatory. include:

• place of work;
• production function;
• date of commencement of work (if the contract is urgent, then the grounds for its conclusion and the date the agreement ends);
• wage criteria;
• working hours and rest time;
• guarantees and compensations;
• conditions governing in necessary cases the nature of the work (mobile, traveling, on the road, etc.);
• working conditions in the workplace;
• provision of compulsory social insurance.

In the future, changing the essential terms of the employment contract is possible only by agreement of the parties, that is, by mutual agreement.

After the entry into force of the contract (), its provisions become binding.

However, from time to time, at the initiative of one of the parties, and sometimes regardless of their will, events occur, after which it is necessary to make changes to the agreement between the employee and the employer (this topic is reflected in the Labor Code of the Russian Federation in).

Any changes in the terms of the employment contract determined by the parties are allowed only with the consent of the parties (. Exceptions, of course, happen, but about them a little lower.

All changes must be made in writing, through the signing of an additional agreement.

Reasons for the change

1. Initiative of one of the parties

Regardless of who (the employee or the employer) initiates changes in working conditions in the employment contract, whether it is an increase in salary, new position, adjustments to working hours, etc., if the opposite party does not agree, no change occurs.

If everyone agrees, then an additional agreement is prepared and signed in two copies.

Sample Additional Agreement

In this document, be sure to indicate the parties, the date and place of imprisonment, and also specifically and clearly write what exactly is changing (added or excluded). At the end, indicate from what time the changes take effect.

For example, accountant Petrov decided that he didn't want to work five days a week, averaging 40 hours, but wanted to work four days a week, averaging 32 hours. With this proposal, he turned to the employer. The employer knows that Petrov is a good accountant and does not want to lose him, so the parties came to an agreement: Petrov will work 4 days a week, 32 hours on average, but his salary is no longer fixed, as before, but is calculated in proportion to the time worked by Petrov . This consent is set out and recorded by the parties in writing in the form of an additional agreement No. 1 to Petrov's employment contract.

2. For medical reasons

If, for health reasons, an employee cannot perform his functions, the employer is obliged to transfer him (but only with written consent!) To another job that is not contraindicated to him (). That is, the employer is obliged to change the essential terms of the employment contract of his employee.

For example, after going through the next medical examination the medical board issued a conclusion to the electric and gas welder Sidorov that he was not allowed to work as a welder. Sidorov brought this conclusion to the employer. What to do next?

The legislator in this case provided for two possible options and the following procedure.

2.1. Temporary transfer for up to 4 months

Conditions for amending the employment contract

If Sidorov agrees that within 4 months he will work not as a welder, but as a carpenter, that is, his production function will change (if, of course, he meets the qualifications), then the procedure is as follows:

• we obtain the written consent of Sidorov;
• we prepare an additional agreement to the employment contract in two copies, in which we indicate the reasons, terms and a new production function;
• we sign;
• preparing an order for temporary transfer, with which we introduce Sidorov under the signature.

After the expiration of the agreement, we again prepare an order for a reverse transfer, also with the signature of the employee. In both orders, we put the medical report and an additional agreement in connection with it as the basis.

Sample written consent to change the terms of an employment contract

Sample order for temporary transfer

Conditions for dismissing an employee from work

If Sidorov does not agree with this turn of affairs in any way, or the employer does not have vacancies suitable for him for health reasons, the employer is obliged to remove Sidorov from work for a period of up to 4 months specified in the medical report while maintaining the position. During this period, the employee is not paid.

Sample letter of dismissal

2.2. Temporary transfer for a period of more than 4 months

Changing the terms of the employment contract determined by the parties

If Sidorov agrees to be a carpenter for more than 4 months or to be a carpenter permanently, we obtain his written consent, prepare an additional agreement in two copies, in which we indicate the reasons, terms (if the transfer is permanent, we clarify that now this is Sidorov's main work) and a new production function, we sign and we are preparing an order for a temporary transfer, which Sidorov must sign. When the transfer period ends (if it is not permanent), we prepare an order for a reverse transfer.

Conditions for terminating an employment contract

If the medical commission has determined that the transfer should be permanent or more than 4 months, and Sidorov refuses to transfer, or the employer does not have a suitable vacancy, the employment contract is terminated in accordance with clause 8 of part 1 article 77 of the Labor Code of the Russian Federation.

Sample letter of resignation

At the same time, in order to avoid litigation and negative judicial practice, we recommend that employees who need temporary or permanent transfer for medical reasons be offered all vacant positions that are suitable for them in terms of qualifications (including higher positions) or an existing job that is not contraindicated for health reasons.

3. Due to changes in organizational or technological working conditions

A detailed procedure in this case is provided article 74 of the Labor Code of the Russian Federation, we only note that if the clauses of the contract cannot be saved for reasons beyond the control of the parties, the employer has the right to change the terms of the agreement on his own initiative, but the production function of the employee cannot be changed.

The employer is obliged to notify the employee in writing of upcoming innovations and their reasons no later than two months in advance.

Sample notification of changes in the terms of an employment contract

If the employee does not agree to work in the new circumstances, the employer is obliged to offer him in writing another job he has, which the person can perform taking into account his health. At the same time, the employer must offer the employee all the vacancies that meet the specified requirements that he has (the employer is obliged to offer vacancies in other areas, if this is provided for by local regulations).

If a suitable job the employer does not have, or the employee refused what was offered to him, the employment contract is terminated in accordance with clause 7 of part 1 article 77 of the Labor Code of the Russian Federation.

Exceptions to the rules

According to article 72.2 of the Labor Code of the Russian Federation, when:

• natural disasters, no matter what nature;
• industrial accident or industrial accident;
• fire, flood, famine, earthquake, etc.

And also in any other cases when people's lives are in danger, it is possible to change the terms of the employment contract at the initiative of the employer, i.e. the employee can be transferred without his consent (for up to one month) to work not under his employment contract with that same employer to prevent disasters or eliminate their consequences.

At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

An employment contract is a formal written agreement between an employer and an employee that establishes certain mutual rights and obligations. Any transformations, changes and additions are possible only in writing. Otherwise, they have no effect.

Attention

The Labor Code of the Russian Federation determines the procedure for changing an employment contract. Any innovations must be carried out in strict observance of the interests of the employee. Failure to comply with this law will result in penalties. Both the employer and the employee must accurately represent and follow the procedure for editing the agreement concluded between them. Of course, this procedure has its own subtleties and features that must be observed.

Labor Code on the procedure for changing an employment contract

The procedure for carrying out any procedures with a document concluded between an employee and an employer is assigned a separate chapter of the labor code - Chapter 12. Initially, the Labor Code establishes that changing any provisions in an employment contract is allowed only by agreement of both parties, with the exception of some cases. According to article 74, if editing is necessary due to improved working conditions, the employer has the right to make amendments without the consent of the employee, notifying him of this 2 months in advance. However, the law clearly states:

• The employer cannot unilaterally edit the items relating to the performance of the labor functions of the employee;
• The employer must offer all employees a reduced working time regime if, after the transformation, their mass layoffs began. The duration of the regime is no more than 6 months.

IMPORTANT

The management of the organization must justify the need to edit the provisions of the employment contract. Also, the consent of the employee and the items related to his temporary transfer to another position or to another unit for up to 1 month, if this is due to emergency circumstances or the need to prevent disasters and accidents, do not require the consent of the employee. The demotion in this case requires the consent of the employee.

When can an employment contract be changed?

Chapter 12 of the Labor Code of the Russian Federation, devoted to all changes in the employment contract, establishes a certain list of circumstances, in the event of which one can resort to editing its provisions:

1. Transfer - sending an employee to another division of the organization or changing the type of his work at the initiative of the employer. Such amendments entail a change in labor functions and other conditions that need to be displayed. Transfer is possible only with the consent of the transferred employee. Transfer should not be confused with transfer. Relocation is the transfer of an employee to another job in the same organization without a change in functions and innovations in regulations, while it does not require consent this employee. It is extremely important to understand the differences between these concepts;
2. Change of any items previously agreed by the employee and the manager, due to a change in working conditions;
3. Change of ownership of the organization in which the employee is registered, its reorganization or transformation of the type of institution;
4. Suspension of an employee from the performance of official duties.

The legislator determines that the parties have the right to change any previously agreed provisions. Most often, the term of the employment contract, the name of the organization (if it changes), the salary of the employee, the position held, the legal address of the employer, etc. change.

Change order

On both sides labor relations there will certainly be a question about the form of the order to edit the clauses of the employment contract. For this document the law does not provide for a special standardized design. The order is issued in free form using letterhead organizations.

The heading of the document must contain the full name of the organization and its registration codes - KPP, TIN and OGRN. A little lower is the word "Order" indicating its number. Under this line, the name of the order is affixed, for example - “On amendments to the terms of the employment contract of Ivanova A. A.”. The next line contains the date.

After the header is designed, the introductory part of the document is written, in a specific form containing the basis that caused the amendments. After indicating the grounds, the word “I order” is put, and the following data is written under it:

1. Grounds for amending the employment contract. Most often, it is a previously concluded agreement between the employee and the employer, and therefore it is enough just to put down its details;
2. Requisites;
3. The text itself, indicating the part in which it was included.

After these operations, it remains only to set and display the start date of the order and appoint responsible persons. In the change order labor agreement must be signed by the head, responsible persons and the employee himself, the contract with which was changed.

Based on the above, we can conclude that the order to change the content will look like this:

As you can see, the order to change the employment contract is as simple as possible in execution and does not require compliance with the established model.

Step-by-step instructions for amending an employment contract by an employer

Exists certain order changes to the employment contract. A peculiar algorithm is formed:

1. If the employer is the initiator, he notifies the employee of the desire to make the necessary changes. For this purpose, the employer must send a referral to the employee in two copies (one copy after the employee's approval goes to the employer, the second remains with the employee himself). If the employee gives his consent to editing the employment contract, he confirms this in writing. This confirmation is the basis for starting the procedure for drawing up and accepting an agreement;
2. An additional agreement is generated in two copies. It must contain all proposed amendments;
3. The drawn up agreement is registered in accordance with the norms established in the organization;
4. One of the copies is given to the employee in the hands, while this fact must be certified by the signature of the employee in the copy of the employer;
5. A decree is issued containing the fact of amending the content of the concluded document. Like the agreement, this document must be registered;
6. The parties get acquainted with the order and confirm it by affixing signatures.

This procedure for changing the employment contract is established by law and cannot be changed.

Change agreement

A correctly drawn up agreement on editing the provisions of an employment contract concluded between the parties is an extremely important component. The law establishes that any amendments to the agreement between the employee and management must be recorded in an additional document. Such an agreement is a guarantor of the existence of an agreement between the parties on editing the conditions. It should be borne in mind that even with a unilateral change in the provisions of the contract between the employee and the manager, it is necessary to draw up this document.

Note

The agreement should correctly reflect the essence of the changes being made. The reasons for changing the employment contract do not need to be included. The agreement comes into force from the moment of its signing or after a certain period of time. The effect of its provisions can be extended to the past tense. The agreement is concluded in various cases - when changing jobs, changing official functions, salary and related benefits, working hours and other things.

A sample agreement for changing an employment contract is shown in the image below:

It must be remembered that any amendments must be accompanied by the preparation of a similar document.

Employee Notification

As previously stated, management may, without discussion, on its own initiative, amend the employment contract. The law says that such changes are possible only with a change in various kinds of working conditions at the enterprise. The main reason for the unilateral change of various paragraphs of this document is the inviolability of the labor function (duties) of the employee. In addition, the need to introduce various amendments must be justified by the management of the organization with the provision of appropriate evidence.

The management is obliged to notify the employee of the proposed changes and the grounds for their introduction two months in advance. The notice must be provided in writing and contain the following essential data:

• Reasons for the amendment.
• The offer to the employee of two options - consent or rejection.
• An offer of another vacancy that the manager has. It must be suitable for the worker.

As with the editing order, the legislator does not provide for a formal form of notification. Accordingly, the employer can draw up a form at his own discretion, but not contrary to the norms of the Labor Code of the Russian Federation (namely, Art. 74). Here is an example of such a notice:

As you can see, the notification contains the reasons for changing the items, the items being changed, a note of receipt, and a note of agreement or disagreement of the employee.

Additional Information

In addition to everything, the legislation obliges the manager to offer the employee other available vacancies when he does not give his consent to the amendments. In the absence of such options, or if the employee is not ready to accept any of them, the contract between the parties is terminated on the basis of the provisions of the Labor Code.

It is possible that the amendments being made may cause the dismissal of a large number of employees. In this case, the management of the organization may resort to setting a different mode of work - part-time. The duration of this innovation should not exceed 6 months. Upon refusal to work part-time the agreement concluded between the parties is also subject to termination.

And the last, no less important, clarification is that any transformations must be carried out taking into account maintaining the position of the employee at the same level.

The procedure for changing the terms of an employment contract by an employee

Often there are situations when the employee himself is the initiator of editing the clauses of the employment contract between the manager and the employee. In this case, he must submit an application containing a request for changes, describing the reasons. The application is registered, after which the employee can only wait for an official response from the employer.

In case of consent, the further procedure is no different from the previously described. It still consists of several points:

1. Generation of an agreement between the parties on amendments;
2. Registration of the agreement internal regulations organizations;
3. Putting down signatures and transferring copies of the agreement to the parties;
4. Issuance of an order on editing the employment contract and its registration;
5. Familiarization of the employee with the order and affixing signatures.

This order is officially established and cannot be violated.

Refusal to make amendments

As mentioned earlier, management has the right to personally change the provisions in connection with changes in working conditions. You just need to send a notification to the employee. But what happens if an employee refuses to accept the proposed changes?

It was described above that in such a situation, the management of the organization is obliged to offer the employee all available options for changing the vacancy. In their absence or if the employee refuses to accept them, the employer receives the full right to dismiss the hired citizen and terminate all labor relations with him. This is evidenced by the Labor Code of the Russian Federation (an employee’s refusal to work after a change in provisions leads to the termination of all relations between the parties).

Nuances

Wanting to unilaterally amend, employers often get confused. This leads to the recognition of the accepted innovations in the employment contract as illegal. There are many editing situations to optimize work:

• Transfer of an employee to another office or division;
• Adding new responsibilities;
• Change of work schedule;
• Change of operating mode;
• Changes in the employee's salary and much more.

And even despite the fact that the legislation clearly regulates this issue, many employers are confused not only in the procedure for adopting amendments, but also in what can be considered a change in the contract and what cannot.

It is important to understand that all information to be recorded is contained in article 57 of the Labor Code of the Russian Federation. Their editing will entail changes in the concluded agreement. It remains to look only at the mandatory nature of the item being changed - if the article states that it is mandatory, then amendments must be made. It may also happen that this provision is absent in the article. In this case, it is necessary to check whether it is contained in the contract. If it does, you still have to edit it.

In other cases, fixing innovations is not mandatory. For example, a change in the order of subordination of an employee or a change in the location of the workplace does not entail changes in the content of the employment contract.

In addition, the employer often makes the following mistakes:

• Does not send a notification to an employee;
• Sends a notification, but does not indicate in it the reason for the change;
• Arbitrarily calculates the notice period for the employee (according to the law - 2 months);
• Neglects the offer of other vacancies if the employee refuses to change;
• Does not follow the order of changes.

Almost all of the errors discussed above lead to the invalidation of the changes made, and the dismissal of an employee due to refusal is recognized as illegal. That is why it is extremely important to strictly follow the procedure.

The employer should take into account that in litigation labor law and the court puts the interests of the employee above the interests of the employer. In this regard, it is necessary to treat the editing procedure of such an important document as carefully and responsibly as possible. Subject to all the above nuances and in the absence of errors, the procedure for improving or worsening conditions will take place without any undesirable consequences for the employer or employee.

Labor legislation clearly describes all aspects of the relationship between the employer and the employee. The amendments to the agreement concluded between them are no exception at all. For any manipulations, it is necessary to strictly follow all the instructions of the Labor Code of the Russian Federation. This contributes to the correct conduct of all procedures and the absence of sanctions for violation of the rules for their implementation. following step by step instructions, timely execution of all required documents and the presence of agreement between the employee and the management of the organization is the key to the success of any operation regulated by labor laws.