In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, 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 of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, 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, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work 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. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If there is no specified work or the employee refuses the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code. In the event that the reasons specified in part one of this article 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 and in the manner established by Article 372 of this Code, to adopt local normative acts, introduce a part-time working day (shift) and (or) part-time working week for up to six months.
If an 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.
Cancellation of a part-time working day (shift) and (or) part-time working week 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 to 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 or agreements.
Commentary on Article 74 of the Labor Code of the Russian Federation
As a general rule, changes to the terms of an employment contract determined by the parties are allowed only by agreement of the parties and in writing (see Article 72 of the Labor Code and commentary thereto). At the same time, the commented article contains exceptions to this general rule and allows, at the initiative of the employer, to change the conditions agreed upon by the parties without the consent of the employee. In this case, changing the labor function is not allowed.
The legislator does not disclose the concept of either organizational or technological working conditions, but only points to such reasons as changes in technology and production technology, structural reorganization of production, etc. (for example, merger, accession, division, transformation, spin-off, downsizing and ( or) staff of employees, etc.).
It is very important that changing the terms of an employment contract is possible only when changes have occurred in the organizational or technological working conditions and, accordingly, the agreed conditions cannot be maintained. Therefore, the employer is required to provide appropriate evidence of such changes. In paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, the need to take into account Art. 56 of the Code of Civil Procedure, according to which 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 a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of workplaces based on their certification, structural reorganization of production, and did not worsen the employee’s position in comparison with the terms of the collective agreement or agreement.
In the commented norm, in comparison with the previous edition, the procedure for changing the terms of an employment contract determined by the parties for reasons related to changes in organizational or technological working conditions is supplemented with provisions that eliminate the discrepancies that existed in the past regarding the calculation of the deadlines for warning employees about an upcoming unilateral change in labor conditions agreement and possible dismissal in case of disagreement to continue working under new conditions.
The employee must be notified by the employer in writing of the introduction of these changes, as well as the reasons for such changes, no later than two months in advance, unless otherwise provided by the Labor Code.
Changes to the terms of the employment contract determined by the parties cannot be introduced if they worsen the employee’s position in comparison with the established collective agreement or agreements.
However, if the employee does not agree to continue working under the new conditions, then the employer is obliged to offer him in writing another job available to him (a vacant position or a job corresponding to the employee’s qualifications, a vacant lower position or a lower paid job), which must correspond to his state of health. In the absence of such work or in the event of the employee’s refusal to do it, the employment contract with him is terminated under clause 7 of Art. 77 Labor Code (see commentary to Article 77).
If the employee refuses to continue working under the new conditions, the employer is obliged to offer existing vacancies that meet the necessary requirements and are located in the given area. But the employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Part 5 of the commented article provides that if the circumstances specified in part 1, i.e. changes in organizational and technological working conditions may lead to mass layoffs of workers; in order to preserve jobs, the employer has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time working day (shift) or part-time working week, but only for a period not exceeding six months. In this case, the procedure for taking into account the opinion of the elected body of the primary trade union organization, provided for in Art. 372 Labor Code (see commentary to it). The criteria for mass dismissal of workers are determined by industry and (or) territorial agreements (see Part 1 of Article 82, Articles 45 and 46 of the Labor Code and commentary thereto). In accordance with the Resolution of the Council of Ministers - Government of the Russian Federation dated 02/05/1993 N 99 “On the organization of work to promote employment in conditions of mass layoffs” <1> the main criteria for mass layoffs are indicators of the number of workers being laid off in connection with the liquidation of enterprises, institutions, organizations or layoffs number or staff of employees for a certain calendar period.
——————————— <1> SAPP RF. 1993. N 7.
If an employee refuses to continue working on a part-time (shift) or part-time work week, his employment contract is terminated due to a reduction in staff or numbers under clause 2 of Art. 81 of the Labor Code with the provision of appropriate guarantees and compensation (see Article 81 of the Labor Code and commentary thereto).
A part-time working regime introduced by the employer for a period of no more than six months can be canceled before the expiration of this period and taking into account the opinion of the elected body of the primary trade union organization (see Article 372 of the Labor Code and commentary thereto).
After six months after the employer introduced the part-time work regime, all employees must be transferred to the previous normal work schedule.
About changes to the employment contract
Any transfers to other positions are carried out only if the employee has given written consent. The reasons for the procedure do not affect these rules.
This even applies to situations where transfer to other positions is related to the state of health of the citizen. The main thing is that the new position does not contradict the doctor’s instructions.
A transfer is not considered to be a situation where an employee’s job function remains the same as before. It is believed that no significant changes have been made to the employment contract.
In this video, Elena A. Ponomareva gives step-by-step diagrams and procedures for registering changes to the terms of an employment contract:
Deciphering the concept of “labor function”
The definition of the concept of “labor function” is reflected in Articles 15 and 57 of the Labor Code of the Russian Federation. It involves working in a specific specialty or qualification. Specifically, it represents a permanent fixed list of work, characterized by the position for which the employee is hired. Operations included in the range of mandatory tasks are approved by superiors. A list of all functions is displayed in the main contract or in an additional agreement. Detailed instructions are contained in the instructions for each specific position.
There are different options for interpreting the labor function. In the first case, it may be work performed directly in the specialty. In the second, it means the type of activity entrusted to the employee. To illustrate the differences, an example should be given.
- When hiring, the contract reflects the following entry: “The employee undertakes to perform the functions of an electrician for repairs.” It does not specify exactly what operations he will carry out. A detailed explanation is given in the instructions according to the position held.
- Another interpretation reads: “The employee is entrusted with performing all types of plumbing work to repair electrical equipment.” It involves a wide range of responsibilities that can be assigned to a subordinate.
Therefore, when concluding a contract, it is recommended to clearly formulate the concept of labor function, since it determines the degree of legal responsibility when the issue of bringing an employee to disciplinary punishment arises. It also allows you to establish the legality of concluding an agreement on liability.
It is important to know! This option of assigning labor functions meets the interests of the employee, since it prevents abuse on the part of the manager who imposes additional work on the subordinate. The boss has the right to demand strict fulfillment of all duties assigned to the employee.
When conditions change without consent
One of the most common situations is when a citizen is transferred from one job to another. In this case, a direct change in labor functions is assumed. The translation itself is either temporary or permanent.
Temporary transfers are issued for a period of 1 year or more. Without the consent of subordinates, the duration of the transfer cannot be more than 1 month. The main thing is to observe the nuances, a clear description of which is present in the Labor Code of the Russian Federation.
Citizens are transferred without consent in case of emergency. For example, when eliminating the consequences of man-made or natural disasters or when downtime occurs due to emergency circumstances, the likelihood of damage and destruction of property.
In both cases, the employee’s consent will be required if the qualifications in the new place are lower than in the old one. It is especially important to indicate information regarding structural units if a citizen is transferred between them.
The employer proposes to change the terms of the employment contract. Do I need to agree? Is it possible to refuse? What steps should you take to protect your rights, watch in this video:
Article 72.2. Temporary transfer to another job
(introduced by Federal Law No. 90-FZ of June 30, 2006)
By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law , - before this employee goes to work. If, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.
In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.
Transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement an absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of this article. In this case, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.
When transfers are made in cases provided for in parts two and three of this article, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.
Important points when changing your profession name
This procedure is carried out when new characteristics are included in the Unified Tariff and Qualification List. Or when the names from the directory of employee positions change. That is, the old designations are replaced by new ones.
Such situations require transfers to another job if the changes concern not only titles, but also:
- volume of skills;
- knowledge;
- employee functions;
- duties or rights.
Such procedures are in any case carried out with consent, without exception. Renaming of professions and positions is carried out either by the Government or another body vested with the appropriate powers. The manager has no right to be guided by other information or his own wishes.
As for the renaming of specialties, the law does not consider such situations to be a significant change in conditions. After all, the specialties themselves are defined within certain professions. Therefore, the rules provided specifically for them apply.
Algorithm for making changes
- Issuance of an order on organizational and/or technological changes at the enterprise.
- Publication of a draft order for future changes.
- Preparation of an additional agreement or a new version of the entire contract.
- Introducing design changes to accompanying documents: shift schedule, enterprise work schedule, staffing schedule, job descriptions, regulations on certain types of enterprise activities, regulations on divisions and other local acts.
- Familiarization of the employee with draft documents for signature (either they are signed in a special column in the draft order, or in separately issued notifications). Introductory events are carried out at least two months before the amendments to the employment contract come into force.
- Issuing an order for changes.
- Concluding additional agreements or new contracts.
About judicial practice
Employees are fired only after a month has passed, allotted for studying the new rules and requirements. But employees may insist that the agreements be terminated earlier than the specified time.
The court may change the date of dismissal if the manager did not comply with the basic rules for changing essential conditions. In this case, the legal relationship ends when the month specified at the legal level ends. Such provisions apply in situations where reinstatement of employees is not possible.
There are situations where the employee was notified of the changes, but was fired before the end of the month. And in this case, the court takes the side of the citizen whose rights have been violated. Then the employer is required to recover the earnings lost during this time.
In practice, situations involving hazardous working conditions often occur. Managers removed compensation clauses from agreements due to the fact that production was objectively modernized. And the court sided with the employers.
About specific situations
It is impossible to apply disciplinary sanctions only for the refusal of employees to continue cooperation in changed conditions. This is a right enshrined in law.
In practice, managers often force work to continue after conditions have changed and the month's notice period has expired. If employees do not agree, they are fired immediately. Absenteeism and systematic violations of disciplinary procedures are recorded as grounds.
In such circumstances, the court agrees to change the wording of the dismissal. The case is considered on the basis of the facts that actually occurred.
