The financial crisis has created serious problems for employing companies. In the current realities, many managers are thinking about a more rational distribution of resources for their effective use.
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Thus, in order to save money, technological and organizational working conditions are changing. For example, an employer approves a part-time or part-time working week for all or some employees. The need for such actions may be caused by other problems or tasks of the employer.
A change in working hours is formalized in two ways: by decision of the parties or unilaterally by the employer, if there is a legally approved basis for such operations. The procedure itself will depend on which of these options is valid in a particular case.
What does the law say?
The main legal act that regulates this issue is the Labor Code of the Russian Federation. It approves the main points regarding the working period regime.
In addition, this codified act enshrines the right of the employee and the employer to change it by agreement. The Labor Code of the Russian Federation lists the reasons for unilateral transformation of the operating mode.
In the Labor Code of the Russian Federation, the working period regime is regulated by Art. 100. Paragraph 15 of this norm approves the rule on the possibility of changing it. Moreover, the legislator gives the right to make such changes both in relation to all employees and selectively.
Labor Code of the Russian Federation
In paragraph 16 of Art. 100 of the Labor Code of the Russian Federation defines the process of transforming the working period regime by decision of the parties. You can perform such actions at any time.
Transformations may affect the start of the working day or the regime as a whole.
The law allows for a situation where these changes are made by decision of an employee, including a part-time worker. This is possible in situations approved in Art. 93 Labor Code of the Russian Federation. The employer may take the initiative to change the working hours in cases approved by Article 74 of the Labor Code of the Russian Federation.
Is it possible to fire an employee if they refuse?
Changing your work schedule is not a reason to quit!
If the employee does not agree to the new working conditions, the employer undertakes to offer him all available vacancies at the enterprise that correspond to his qualifications. Vacancies must be offered in writing only and must all be located in the local area.
If an employee is not satisfied with any of the proposed vacancies, and he does not agree to work according to the new schedule, he can be fired under Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal of a position due to changes in the employment contract). In this case, the company undertakes to pay him severance pay in the amount of two weeks' earnings.
Important: you must also offer lower-level positions; without this, the dismissal will be considered illegal, and the court will oblige the employee to be reinstated.
If the documentation is completed correctly, the transfer of part of the employees or the entire team to a new schedule will take place without problems and mutual claims between the employer and employees.
To learn how to set up employee working hours, watch the video:
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In what cases is it allowed?
Changing the working period by decision of the parties is permitted in all situations. The employee and employer sign an additional act, which acts as an integral part of the employment contract.
The law also analyzes two more situations:
- change at the initiative of the employer;
- transformation at the initiative of the employee.
Grounds and reasons
All reasons for transforming the working period regime can be classified depending on the person initiating such transformations. Above, we determined that a change can occur by decision of the parties. In such a situation, the reasons are not identified.
A contract is a free document that defines the terms of interaction between an employee and an employer. If it contains provisions that do not contradict labor legislation, then it is recognized as valid. Accordingly, the employee and the employer are not limited in their ability to transform the order of interaction with each other.
Also, the basis for transforming the working period regime is the initiative of either the employer or the employee. Let us consider the reasons for making such a decision in more detail.
Employee initiative
When can an employee show such initiative? Similar situations are defined in Article 93 of the Labor Code of the Russian Federation.
For example, a pregnant woman, a parent of a child under 14 years of age (if the child is disabled, then until adulthood), as well as an employee who cares for an unhealthy family member as prescribed by a doctor can apply for a change.
Employer initiative
In accordance with current legislation, the employer has the right to change any terms of the employment contract, with the exception of those that affect labor operations performed by the employee.
Accordingly, he can transform the working period of his employee. The reasons for carrying out such an operation are approved in the Labor Code of the Russian Federation - transformation of organizational or technological working conditions, for example, technology for creating a product, innovations in technology, etc. In accordance with Part 1 of Article 74 of the Labor Code of the Russian Federation, this list is open.
The legislator does not name all the reasons that may be sufficient to make such decisions. Accordingly, the list is open and subject to broad interpretation.
Agreement of the parties
The decision to change working hours is made by agreement of the parties.
Both the employer and the employees can take the initiative, but final transformations will be possible only with a mutual decision.
When is it legal?
The employer does not always have the right to resort to such a step. This is done in several cases:
- a need provoked by circumstances at work;
- replacing another employee (for example, someone who is sick);
- accidents and catastrophes, natural disasters;
- epidemics;
- other incidents involving a threat to human life;
- change of company activity.
Cases when the consent of a subordinate is not necessary are specifically stipulated by law (Article 72.2 of the Labor Code of the Russian Federation). This is usually associated with emergency situations, when the health and lives of people are involved, or there is a threat of damage to valuable property. But sometimes the reason lies in production downtime.
In this case, the subordinate’s consent is not asked only when moving him to another position within the same company, with the same level of earnings . Otherwise, a citizen will be able to defend his rights by contacting the labor inspectorate or even the court.
Salaries do not have to be equal; they can be lower. The lower limit of income in a new place is the average monthly income at your previous job .
Forced transfer does not apply to employees under eighteen years of age or pregnant women.
Under no circumstances, management has the right to insist that the transferee perform activities that are contraindicated based on the results of a medical report.
Acceptable deadlines
If something extraordinary happens, the head of the institution sends the subordinate to another point, with worse working conditions, for no more than thirty days.
Duration
The duration of working hours is the number of hours during which the employee performed his labor function. This indicator in its normal form is 40 hours. This norm applies to all workers, except those who are provided with a reduced working period, for example, for minors.
If an employee works more than 40 hours/week, then this period must be paid as overtime.
It is necessary to distinguish these situations from cases of approval for an employee with irregular working hours. In such a situation, a person is occasionally involved in performing work duties outside the normal working period.
As compensation, he receives 3 additional days of vacation.
Temporary
A change in working hours may be necessary for a short period. For example, in the summer - this is very important when employees go on vacation and need to be replaced.
Several situations are possible here:
- execution of an additional agreement with a certain period of validity (by agreement of the parties);
- registration of internal part-time work for a specific period (can be for one day or month), which also implies the conclusion of an additional agreement to the employment contract.
Permanent
The permanent transformation of the working period regime is carried out in the general manner. Depending on the specific situation, changes can be made to the employment agreement and internal labor regulations - a local document adopted by the enterprise.
The reason for making such a decision also has its role. Thus, the need to obtain the consent of the employee or employer will be determined.
On our website you will find detailed information about the types of working hours. How to keep track of working hours? You will find an example here.
Features of changing working hours
Features of mode transformation are determined by the method of its consolidation in documents.
Three situations are possible:
- the working hours regime is approved in the employment contract and it does not coincide with what is established in the internal labor regulations (ILR);
- the regime is not enshrined in the employment contract, as it is identical to that approved in the PVTR;
- the regime is enshrined in the employment contract and in the PVTR, and it is the same.
Despite the fact that the employer, at his discretion, can change the PVTR when the enterprise does not have a representative body of workers, these provisions are not applicable to the working time regime.
Here, employees are also able to influence this condition when there are no grounds for their unilateral change by the employer.
How to change? General rules and procedure
Changing the working period schedule is carried out differently depending on the basis for the implementation of such transformations.
So, if transformations are carried out by mutual decision of the employees and the employer, then it is necessary to draw up new additional agreements. They may differ depending on the procedure for approving working hours in the documents of a particular company.
If changes are made to the PVTR, an order is issued to take appropriate actions, then an agreement is drawn up.
The new regime will be valid for the employee from the date of signing the additional agreement. This is very important, especially when the changes affect more than one employee.
Thus, innovations may not affect different employees at the same time.
If the regime is established by the employment contract
If the parties do not object to the changes, then it is enough to draw up additional agreements. They indicate the item to be changed, as well as its new edition.
This agreement is signed by both the employee and the employer.
If employees do not agree, the transformation procedure will look like this:
- the employer issues an order to change the regime;
- employees must be familiar with the order against signature;
- further, the employees either sign an additional agreement, or the employment contract with them will be terminated.
If the regime is established by internal regulations
If the working time regime is approved in the PVTR, the conversion procedure will be carried out in the following order:
- approve the local act in a new edition (with a changed regime) by issuing an order from the manager;
- enter into agreements with employees regarding their consent to the changes. The text indicates the names and positions of all employees who expressed their approval of the changes; the agreement must be drawn up in a quantity sufficient to be delivered to all employees, plus one copy for the employer.
Employee initiative
If the employee has grounds for changing working hours, he submits an application to the employer - a memo. The relevant document is reviewed by the head of the enterprise and a decision is made on it.
If the employee has sufficient grounds for changing the working period and has provided evidence of the objectivity of these reasons, for example, documents, then the employer cannot refuse him. This is directly stated in Art. 93 Labor Code of the Russian Federation.
Violation of this rule may become grounds for filing a complaint with the labor inspectorate or the prosecutor's office.
Application (sample)
The application is submitted by the employee if there are grounds for changing the working hours. A document is attached to it that proves the reality of certain reasons indicated in the text by the employee.
In the application, you must write the current working hours and the one to which the employee wants to change it. The appeal is submitted to the head of the employing enterprise.
Example:
Order (sample)
If an employee is approved for part-time work, an order is issued. It specifies the basis, term, and working conditions.
The employee must be familiar with the order against signature.
Example:
You will find examples of calculating summarized working hours in our article. What methods are used to estimate lost working time? Read here.
How to create a work book for the first time? Find out here.
Additional agreement (sample)
After the order is issued, an additional agreement must be drawn up. It is also signed by the employee and the employer.
The supplementary agreement serves as an integral part of the employment contract. It indicates the date of entry into force of the changes, as well as the text of the transformation and the numbers of paragraphs in which they will be included.
One of the copies is given to the employee, and the other to the employer.
Example:
Agreement of the parties
The decision to change the working hours can be made by the parties to the labor relationship by agreement. In such a situation, it is easiest to formalize such transformations.
The parties express their approval by signing an additional agreement to the employment contract.
This act reflects the text of the transformations, as well as the date they entered into legal force.
So, it must contain the following information:
- name of the parties to the agreement;
- the item that is subject to change;
- its new edition;
- the moment the agreement comes into force;
- details of the parties.
Employer initiative
We have already mentioned the reasons why the employer has the right to unilaterally decide on the need to change the working hours. In such a situation, employees tend to express their disagreement with the changes.
That is why it is necessary to carefully comply with all regulations of the legislator.
If the procedure is violated, unfavorable consequences for the employer may occur.
Notice (sample)
All affected employees must be notified accordingly.
This fact is confirmed by their painting. If an employee refuses to receive a notification, then this circumstance should be recorded in an act.
Notice in such a situation is sent by mail with return receipt requested.
Example:
How to analyze the use of working time fund? Find out from our article. Read about the features of flexible working hours here.
Order (sample)
An order in the process of changing the regime is issued in 2 cases:
- the need to make adjustments to the PVTR;
- the employer makes changes unilaterally.
In the first case, the order is necessary, since it confirms the fact of making a change to the local act.
It indicates the reason for the transformation - the need to transform the working time regime. The manager also makes an order to approve the PVTR in the new edition and conclude appropriate agreements with employees.
In the second case, the order to change the working hours must necessarily indicate the reason for the unilateral change in this condition. It also contains the text of the transformations.
If the working hours are approved in the PVTR, then in this order you can make an order to amend the local act.
Example of an order:
Additional agreement (sample)
The additional agreement is approved in accordance with the general procedure. The document itself is drawn up according to the same rules that we discussed above.
If employees do not agree
If employees still do not agree to carry out their labor function in the new conditions, then they will be offered vacant positions at this enterprise.
They can decide on further work within 2 months. The legislator does not prohibit an employee from terminating an employment contract earlier.
If after 2 months the employee has not accepted the vacancies offered to him and has not signed an additional agreement, then the relationship between him and the employer will be terminated.
Amendments to the additional work schedule agreement
It is very important to be extremely careful when making changes to an employee’s work schedule, since in the event of litigation, this point is given special attention. When issuing a decree you must:
- in addition to changing working hours, changes made to the PVTR are displayed;
- indicate the reasons for the changes;
- serial number of the order;
- day, month, year and city of signing the order;
- the subject that caused the change (new equipment, change of season, etc.).
Decisions from management must clearly show the following:
- canceling the previous operating mode;
- establishing a new work schedule;
- indication of working hours of the first and second shifts;
- entering the date from which the agreement comes into force;
- an order given to the head of the personnel department regarding the subsequent familiarization with the order of each employee by means of a written notification;
- affixing the director's full initials and his signature.
When the order is drawn up and signed, each employee must put his personal signature under it.
The notification must contain not only the reasons why these changes were necessary, but also possible reasons for employees if they refuse to sign. If the employee does not want to receive the notification, the HR department employee undertakes to read this document out loud to him and make an act regarding the employee’s refusal to receive this document for review. Another action that the HR employee can take is to send a notice to the employee's email or home address.
When a decision to change operating hours is made by the organization's governing body, notice to employees must be provided two or more months before it takes effect. If the employer ignores this requirement, this may cause conflict with the employee and even consequences for legal proceedings. If the case goes to court, the judge will grant the plaintiff's request, since the management or director of the company is required to provide notice no later than two months in advance.
