Labor function and changes in employee responsibilities: how not to make a mistake (Vishnepolskaya I.)

04.09.2019

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4 min.

Any position involves a certain set of responsibilities. A person gets acquainted with their list before signing the contract. The full range of all tasks performed is called the labor function. It is fixed in the agreement between the employee and the employer at the time of hiring. What the employee’s labor function includes is described below.

Labor function: concept

This concept is legally enshrined in Article 57 of the Labor Code of the Russian Federation. Within the meaning of this legal norm, a labor function should be understood as work in a specific position in accordance with the staffing table, profession and specialty with a mandatory indication of qualifications, as well as the type of specific activity that is entrusted to the employee. Thus, the concept has two interpretation options according to the Labor Code of the Russian Federation.

The labor function is what is enshrined in the employment contract. The wording in it will depend on which interpretation of the concept you choose in each specific situation. So, in the first option, a clause must be included in the employment contract, for example, with the following content: “The employee undertakes to perform work in the position of a chief specialist (chief accountant, leading legal adviser, etc.).” The specific job duties that the newly hired employee will perform are the basis for creating a job description.

If the function of work activity is interpreted according to the second option, then the entry in the employment contract also changes. For example, it may sound like this: “This employee is entrusted with performing plumbing (installation, unloading and loading, etc.) work.

Experts are of the opinion that, within the meaning of Article 15, Part 2 of Art. 57 of the Labor Code of the Russian Federation, the concepts of “position title” and “labor function” are not identical in content. In fact, the second is one of the characteristics of the first. The labor function is specified by certain job responsibilities.

Labor function and changes in employee responsibilities: how not to make a mistake (Vishnepolskaya I.)

Something is always changing in an organization, new technologies and programs are being introduced, ineffective business processes are becoming a thing of the past, and the organizational structure is being revised. This leads to changes in the job responsibilities of employees: from formal clarifications to significant changes in the volume and nature of work. Such processes in a company can cause difficulties when interacting with employees - not everyone will agree with the changes. In addition, the Labor Code of the Russian Federation prohibits changing the labor function of an employee without his consent, even in the case of organizational and technological changes in working conditions. In the article we will look at when and how an employer can painlessly change an employee’s duties, and in what situations this entails the risk of an unfavorable outcome in court.

About the labor function

This concept is key for considering issues of changing an employee’s responsibilities. The definition of the labor function is given in Art. 15 of the Labor Code of the Russian Federation: work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work assigned to the employee. The labor function is the most important condition of the employment contract (Articles 56, 57 of the Labor Code of the Russian Federation). Thus, we can identify several essential characteristics of the labor function: 1) it is formally determined by the name of the position, profession, specialty (welder, legal consultant, marketing analyst, landscaper); 2) the labor function is expressed through work, that is, certain actions that the employee must carry out (interaction with equipment, tools, mental operations, creative actions, etc.); 3) qualifications (the level of knowledge, skills, professional skills and work experience of the employee) reflects the qualitative characteristics of the labor function: the employee’s ability to perform duties of a certain level of complexity, with a certain speed and quality of the result; 4) the labor function is of a specific nature for each employer, depending on the qualification requirements of the employee and his responsibilities (assigned work); 5) this is a key condition of the employment contract, which is under enhanced protection of labor legislation (Articles 57, 72, 72.1, 74 of the Labor Code of the Russian Federation). An interesting question is about the relationship between the labor function and labor actions. The definition of labor actions is given in paragraph 2 of the Methodological Recommendations for the development of a professional standard, approved by Order of the Ministry of Labor of Russia dated April 29, 2013 N 170n: this is the process of interaction between an employee and the subject of labor, in which a certain task is achieved. It logically follows that the concept of “labor actions” is included in the concept of “labor function”. The labor function is expressed in the performance of labor actions, but is not characterized only by them: not only actions are important, but also their relationship, level of complexity and systemic interconnection. It should be noted that the definition of labor action only as “interaction with the subject of labor” is not entirely successful in modern conditions, when labor is becoming more and more “intangible” due to technical and information progress. When a researcher or an author of advertising texts thinks, they interact with their own brain, which is the “subject” of their work. Translating thoughts into text format requires just one object: a computer. And the singer interacts on stage primarily with his hearing and vocal cords, and not with the microphone. Therefore, those actions that are not directly related to objects of the material world (intellectual, creative efforts) should also be considered labor actions.

In personnel turnover, it is generally accepted to use the concepts of “job duties”, “job duties”, which, in essence, are these very “job actions”. Another important question: how does the labor function relate to the employment contract, staffing table, professional standards and qualification reference books, job descriptions, and local regulations? An employment contract must necessarily include a description of the job function. It can be either short: “...hired as a sales manager,” or more detailed: “...hired as a marketing analyst of foreign markets for agricultural products.” In any case, the description contains the name of the position (profession), which is determined in accordance with the staffing table. Professional standards (Article 195.3 of the Labor Code of the Russian Federation) and qualification reference books (Part 2 of Article 57 of the Labor Code of the Russian Federation) determine the required qualifications of an employee; accordingly, data from them can be included in the description of the labor function and significantly influence its content. The job description sets out both the name of the position, the requirements for the employee’s qualifications, and the list of his responsibilities (specific work actions). This is one of the most important and most complete documents characterizing the labor function. After all, it is the job description that, as a rule, contains all the specifics about the responsibilities (labor actions) of the employee. Unfortunately, the Labor Code of the Russian Federation does not contain a definition of a job description, and does not reflect its status - whether it should be considered a local regulatory act, or part of an employment contract. There are no requirements for its content and the procedure for changing/adding. Because of this, as will be seen below, disputes often arise between employees and employers.

Local regulations of the employer may also contain information about the employee’s labor function: all kinds of instructions and regulations that are of an applied nature (for example, instructions for working with clients, etc.). A description of the labor function is often present in regulatory legal acts. This is most relevant for civil servants: procedural codes fix the duties of a judge; profile laws on the prosecutor's office and police reflect the main responsibilities of the prosecutor and police officer.

What is considered a change in job function according to the court?

Can renaming a position, changing a job description, including in connection with the introduction of professional standards, changing the requirements of qualification reference books, be considered a change in the labor function? These questions are answered mainly by judicial practice. Let's consider each option that raises disputes about an unlawful change in an employee's job function.

Change of job title

Let's look at the parties' arguments and the court's position when the employer changed the employee's job title.

Arbitrage practice. In one of the cases considered by the courts, the plaintiff tried to prove that her work function had changed. The social protection institution optimized its staffing structure, within which its position was renamed from “leading specialist” to “specialist of the 1st category”. Along with the name, the qualification requirements also changed: for the new position, the requirement for work experience as a specialist was excluded from the job description. The responsibilities regarding the acceptance of documents from citizens were also clarified: the number, name and list of documents. Other responsibilities in the new job description have not changed. The employee was notified of the upcoming changes in accordance with Art. 74 of the Labor Code of the Russian Federation, but she refused to continue working on new conditions. The court indicated that the plaintiff’s labor function was preserved, despite the renaming of the position, since no new qualification requirements were put forward, the instructions were only slightly clarified, the duties remained the same (decision of the Central District Court of Komsomolsk-on-Amur dated 08/05/2016 in case No. 2 -5099/2016).

Arbitrage practice. In another case, it was about the fact that the plaintiff’s position was renamed from “junior teacher” to “assistant teacher” in connection with bringing the kindergarten’s staffing table into compliance with the Unified Qualification Directory of Positions (USC). The court also took into account that the job descriptions for the new and old positions differed slightly only in terms of the requirements for the employee’s qualifications, but the responsibilities were identical, therefore, the job function did not change. Therefore, the court refused to cancel the plaintiff’s order to change the name of the position (decision of the Leninsky District Court of Orenburg dated September 5, 2013 in case No. 2-3831/2013). Similar conclusions were made in the appeal ruling of the Sverdlovsk Regional Court dated October 20, 2015 in case No. 33-14062/2015: the name of the plaintiff’s position was brought into line with the Unified Social Code, the scope of responsibilities according to the job description did not change, and the job function was preserved.

And here is the opposite situation, when other working conditions have changed along with the job title.

Arbitrage practice. Under the guise of changes in working conditions in accordance with Art. 74 of the Labor Code of the Russian Federation, the company actually tried to lay off an employee, his position from “director of the contract support department” was renamed to “manager of the contract support department”, the salary was reduced four times, and the responsibilities under the new job description were reduced. As a result, the labor function was not preserved (appeal ruling of the Moscow City Court dated September 22, 2016 in case No. 33-38244/2016).

Change of job description

Employees can be very sensitive to the slightest change in their job responsibilities, even to the point of appealing in court against changes made to the job description. Depending on the specific situation, the court may either consider the job function to be preserved and recognize the change in the instructions as legal, or recognize the employee’s right in connection with the unlawful change in the job function.

Arbitrage practice. When hired, the employee was familiarized with a job description, which did not specify the duties, but only described the general tasks of the employee. Then the employer issued a new instruction in which he prescribed the employee’s specific responsibilities, because before this there had been conflicts in the spirit of “this is not my responsibility.” The employee in court tried to prove that there was a change in the job function, the addition of new responsibilities, their increase by 10 times. But the court did not see a change in the plaintiff’s labor function and recognized the employer’s right to specify the general provisions of the job description (appeal ruling of the Khabarovsk Regional Court dated June 5, 2015 in case No. 33-3613/2015).

Situations are possible when job responsibilities are only slightly specified by the employer, which does not lead to a change in the employee’s job function (see, for example, the decision of the Central District Court of Komsomolsk-on-Amur dated 08/05/2016 in case No. 2-5099/2016).

Arbitrage practice. The decision of the Troitsky City Court of the Chelyabinsk Region dated November 11, 2015 in case No. 2-1583/2015 was also not in favor of the employee. Some time before the layoff, the employee was introduced to new instructions, which she did not agree with. In court, the plaintiff argued for a change in her job function and was indignant that her leadership responsibilities had been removed. But the court noted that the changes in the instructions did not change the terms of the employment contract and the plaintiff’s job function: she was not assigned new duties, the daily routine and wages remained the same.

In another case, the job description of the plaintiff, working in a social institution, was adjusted in connection with the introduction of professional standards.

Arbitrage practice. The arguments of the court, which compared the instructions “before” and “after” on preserving the employee’s labor function, are interesting: “the employer made an adjustment to the employee’s existing duties with clarification of labor actions in performing these duties, which confirms that the employee’s labor function in the sense of the provisions of Art. . 57, 60, 72 of the Labor Code of the Russian Federation remained unchanged. Any duties that could entail additional requirements for the plaintiff’s specialty or qualifications were not included in the job description, but new conditions for performing the work assigned to the employee were introduced.” The plaintiff argued that a new labor function had been introduced - organizing the work of the institution, managing the department, and specialists. But the court criticized this argument. In his opinion, “the job description of a social work specialist, approved in 2015, does not include the organization of the institution’s work in the specialist’s labor functions. The function of organizing social services and social support for citizens, taking into account their individual needs, enshrined in the new job description includes labor actions necessary to perform this job function, which were enshrined among the job responsibilities of the previously valid job description.” That is, the employer in the new instructions only generalized the labor actions previously charged to the plaintiff, and the plaintiff incorrectly perceived this wording as a new duty (function) (appeal ruling of the Rostov Regional Court dated May 26, 2016 in case No. 33-8683/2016).

Now we will give examples where the court agreed with the employees and came to the conclusion that a change in the job description led to a change in the mandatory terms of the employment contract.

Arbitrage practice. The employer changed the engineer's job description, adding blue-collar responsibilities. The court saw this as a significant change in job duties in circumvention of Art. 72 of the Labor Code of the Russian Federation: in fact, the plaintiff was transferred to another job. In this connection, the order to introduce a new job description was subject to cancellation (decision of the Moscow City Court dated February 10, 2012 in case No. 33-3987).

Arbitrage practice. The job description responsibilities were reduced, the position was renamed, and the salary was reduced. In fact, the employee turned from a manager into a manager, and in such a situation, the court assessed the reduction in responsibilities as one of the signs of a change in the labor function (appeal ruling of the Moscow City Court dated September 22, 2016 in case No. 33-38244/2016).

An interesting situation is when the employer, while formally maintaining the title of the position, actually changed the functionality of the employee.

Arbitrage practice. The employee returned to work after maternity leave, but the structure of the company had changed. The position was still called “head of sales department,” but management responsibilities were excluded from the job description and responsibilities for direct sales and employee training, training development, etc. were included. The court noted that while the job title was formally retained, the plaintiff’s responsibilities had changed significantly. Although the employee was notified of structural changes in accordance with Art. 74 of the Labor Code of the Russian Federation, but the employer did not retain his labor function (appeal ruling of the Perm Regional Court dated January 30, 2017 in case No. 33-1052/2017).

Conclusions from judicial practice

So, having considered the examples given, we can draw the following conclusions: 1. The change in the job title itself due to clarification of the staffing table, structural changes, as a result of the introduction of professional standards, etc. will not constitute a change in job function.

2. Along with changing the title of a position, it is not prohibited to change (clarify, specify) job responsibilities (labor actions). Qualification requirements may change slightly, but the new requirements should not preclude the employee from holding the position. These clarifications will not be a reason to talk about a change in the labor function. 3. When several parameters change at once - position title, responsibilities, payment conditions, this is regarded as a change in the labor function. 4. The court will perceive a significant change in the job description (introduction of new duties, including those clearly not corresponding to the position) as a change in the job function.

How can you change an employee's responsibilities?

Guided by the norms of the Labor Code of the Russian Federation and judicial practice on their application, we systematize legal ways to change the labor duties of employees. Without agreement with employees, you can change their responsibilities as follows: - clarify the job description in terms of labor actions, change the wording, which does not change the general content and number of duties assigned to the employee; — to specify the job description in connection with the introduction of professional standards, new requirements of qualification reference books, or if the instruction initially contained only general provisions about the employee’s responsibilities; — at the same time, you can change the title of the position without radically changing the semantic content. For example, it is acceptable to change the title from “leading specialist” to “specialist of the first category.” And when changing the title from “head of sales department” to “sales department manager,” the content of the position and the nature of the work clearly change.

In some cases, the employee must be warned in advance in accordance with Art. 74 of the Labor Code of the Russian Federation, since changes in job titles and/or clarification of instructions may be associated with structural changes (reassignment of units, their merger, etc.). If the procedure provided for in Art. 74 of the Labor Code of the Russian Federation, but the labor function has not been preserved, the application of this norm will be considered illegal. One should also keep in mind this option when the job description is drawn up as an appendix to the contract or is absent altogether, and all job responsibilities are recorded directly in the text of the employment contract. Here, even minor changes should be made only with the consent of the employee by signing the appropriate agreement to the employment contract. Therefore, initially, HR officers should not complicate their work and draw up instructions in this way.

A radical change in a job function can only be done with the consent of the employee (Article 72 of the Labor Code of the Russian Federation). The employer's arguments about any changes will not help here. Of course, Art. 74 of the Labor Code of the Russian Federation, which obliges the employer to maintain the labor function, is very inconvenient for employers, and sometimes it is objectively impossible to preserve the employee’s functionality in the same form. In such a situation, when maintaining the employee’s job function is impossible, you will either have to negotiate with him about a transfer to another job, a significant change in responsibilities, dismissal by agreement of the parties, or lay him off with the payment of significant compensation. But apply Art. 74 of the Labor Code of the Russian Federation, knowing that it is impossible to maintain the employee’s job duties in the same form, is not worth it, since when going to court, the employee will recover even more significant amounts from the company than if the company immediately decided to lay off the employee.

Opinion. Natalya Tolbukhina, teacher, labor law expert Recently, the term “labor action” has begun to be discussed in the literature, as well as at seminars. Some lecturers assign it a truly “magical” meaning, arguing that a change in the labor action is not a change in the labor function. A very controversial judgment in itself, and all the excitement about the emergence of a new term “labor action” and giving it some exceptional possibilities seems to us unjustified or even unnecessary. Some theorists have gone further and tend to distinguish labor action, labor technique and labor operation as separate concepts, giving them different definitions. In fact, a labor technique and a labor operation also imply actions, that is, they are also a type of labor action. All these studies have been revived in connection with the appearance of professional standards in our lives, because it is in them that labor actions are most often mentioned. Even dictionary sources differ in the definition of what a labor action is, sometimes meaning by it a complex of labor movements (two or more in number), and sometimes considering a labor action as any process of interaction between a worker and the subject of labor. In fact, the concept of “labor action” is covered by the concept of “labor function”. Performing a labor function consists precisely in performing a certain kind of labor actions, techniques and operations. As for the possibility of changing the “labor action” without changing the “labor function,” this will not work. The only option in which this will become possible is when the action is not recorded in the job description (or qualification characteristics contained in both the ETKS and the professional standard). For example, if the accountant’s job description states that the accountant prepares and submits reports to state statistics bodies, then changing the forms of such reports will change the accountant’s labor action, but will not change the employee’s labor function; the accountant will still be required to submit reports.

Documentation of the labor function

It has already been said above that the labor function of an employee is work according to the position in accordance with the staffing table, profession and specialty. In this case, the qualifications and the specific type of work assigned to the new employee are separately indicated.

Analyzing this definition, we can conclude that the labor function should be documented. First of all, this is done in the staffing table, which indicates the profession and position. In addition, it is specified in the text of the concluded employment contract.

By signing it, the employee thereby expresses his consent to the specified labor function that the employer plans to assign to him. In order to change it in the future, mutual consent of both parties will be required. Even in the event of a change in technological or organizational conditions, labor legislation does not allow changes in the function of work activity only at the request of the employer, i.e. unilaterally.

As a rule, the scope of an employment contract is limited and does not allow describing in detail all the employee’s responsibilities related to a particular profession or position. In this case, a job description comes to the aid of the employer, which can be issued in the form of an appendix or a separate local regulation.

Not long ago, amendments were made to labor legislation regarding the so-called Professional Standard. It is understood as a characteristic of the qualifications that an employee requires to carry out professional activities of any particular type, including to perform any specific job function. Professional standards have been developed and applied in practice only in accordance with Articles 195.2, 195.3 of the Labor Code of the Russian Federation.

Background

The lack of a clear definition of the concept of “labor function” led to different assessments of its content. Thus, in some cases, the labor function is understood as a set of rights and responsibilities of an employee. According to other experts, a labor function is understood as the performance by an employee of work for a fee in a certain specialty in accordance with the staffing table, indicating the specific work assigned to the employee. There is a point of view according to which the labor function of an employee means qualitative characteristics, type of labor or type of work, activity and his qualifications. Some specialists, when determining the labor function of an employee, along with qualitative characteristics, also highlight quantitative characteristics of labor. There is a position according to which the labor function is a specific range of work assigned to the employee and accepted by him when concluding an employment contract.

In our opinion, the labor function should be understood as: - a certain range of work, production operations, their characteristics, established by agreement of the parties within the profession, specialty provided for by the Unified Tariff and Qualification Reference Book (UTKS) of work and professions of workers; - the range of job responsibilities determined by agreement of the parties, within the positions of managers, specialists and employees, qualification characteristics provided for by the Unified Qualification Directory (USC).

If an employee is hired for a specific position provided for in the employer’s staffing table, then his labor function will be determined by the parties to the employment contract in accordance with the Unified Standards for the positions of managers, specialists and employees.

If an employment contract is concluded with an employee on the performance of work in a certain profession or specialty, then his labor function is determined by the ETKS of work and professions of workers. In this case, the employee’s labor function determines the characteristics of the types of work in the profession depending on their complexity and the corresponding tariff categories. In the event that an employee is hired to perform work that is not provided for by either the EKS or the ETKS, his labor function is determined by agreement of the parties. As a rule, this applies to certain categories of workers.

What is an effective contract?

The Government of the Russian Federation issued an Order containing a program for improving conditions relating to remuneration. It reveals the concept of an effective contract. In essence, this is the same classic (employment) contract with an employee, but it details not only the terms of payment and job responsibilities, but also performance indicators, as well as criteria for assessing its effectiveness, which later form the basis for calculating incentive payments , social support measures. That is, the salary depends directly on the results of work and the quality of municipal (state) services provided by the employee.

So, an effective contract is a formalized employment relationship based on:

• the presence in the institution of a task (state or municipal) and target indicators characterizing the effectiveness of activities (they are approved by its founder);
• a system for assessing the effective performance by an employee of his labor function (actions), which consists of a set of indicators and criteria approved by the employer in the manner prescribed by law;
• a remuneration system that takes into account differences in the complexity of the work performed by employees, as well as the quality and quantity of labor expended (it must be approved in the prescribed manner by the employer);
• labor standardization system approved in accordance with the established procedure by the employer;
• detailed specification of the types of labor functions, taking into account the specifics inherent in each individual industry, in employment contracts and job responsibilities, criteria and indicators that allow assessing the effectiveness of labor, as well as the terms of its payment.

At the moment, some areas of activity have already developed their own methodological basis for the gradual introduction of an effective contract into practice: medical and educational institutions, the sphere of culture and social services.

Employment contract: wording that suits everyone

18.07.19
The article was published in the newspaper “First Page” No. 6 (111), July 2019

No one will deny the fact that an employment contract with an employee, drawn up taking into account all the requirements of labor legislation, provides certain guarantees against fines, litigation and other negative consequences. While an incorrectly drawn up employment contract can threaten the employer with serious troubles, including the loss of the organization’s business reputation.

Suffice it to say that of the total number of violations identified by the State Labor Inspectorate (SIT) during inspections, 14% are violations related to improper execution of an employment contract. Administrative liability for such offenses is established by Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and entails the imposition of an administrative fine:

• for officials - in the amount of 10 to 20 thousand rubles;
• for persons carrying out entrepreneurial activities without forming a legal entity - from 5 to 10 thousand rubles;
• for legal entities - from 50 to 100 thousand rubles.

Thus, when developing an employment contract, the employer faces a difficult task: to maintain a certain balance, in which the terms of the employment contract must take into account both his interests and the interests of the employee, without causing any complaints from the State Labor Inspectorate.

Mandatory conditions of the employment contract are established in Part 2 of Art. 57 Labor Code of the Russian Federation. In addition to them, it is possible to include optional conditions in the employment contract, such as, for example, a probationary clause. The main thing is that these conditions are not aimed at worsening the employee’s position in comparison with established labor legislation and other regulatory legal acts containing labor law norms. Errors made in the wording of the terms of an employment contract can lead to violations of employee rights. Let us consider as examples several unsuccessful formulations that have recently become quite widespread.

Drawing up an employment contract: how to use the professional standard?

It doesn’t matter what you choose - an employment contract in its classic version or an effective contract - in any case, it specifies the employee’s labor functions - this is not a wish, but a necessity. To do everything right, you should be guided by professional standards.

It is considered a mistake to indicate only the position in the employment contract, because it is not a labor function. The Labor Code of the Russian Federation in Article 57 regulates its content. It is separately emphasized that it is necessary to reflect in the text “work according to the position”, and not just its title. Often, employers violate the Labor Code of the Russian Federation, not suspecting that the fine for this offense can be a very significant amount - from 50 to 100 thousand rubles. Moreover, they can be summed up if the inspector finds a violation in several employment contracts.

So, according to the Labor Code of the Russian Federation, the labor function must be prescribed, but how to do this correctly? By simply rewriting a job description into a standard employment contract, the employer is essentially tying his own hands. Professional standards are designed to help in this matter.

Liability for violation of an employment contract

In the event that an employee does not fulfill his job duties (or performs them insufficiently), violates accepted discipline, or causes damage to the property of the enterprise through his actions or inaction, he is subject to disciplinary action. This may take the form of a reprimand, reprimand, demotion, or even dismissal. If a cause-and-effect relationship is proven between the activities of a company employee and the material damage caused, the manager may decide to hold the culprit financially liable. Often, the employer independently determines the punishment for violators of discipline. But in some cases (crimes of a criminal nature), the involvement of representatives of law enforcement agencies becomes mandatory.

Contract – separately, job description – separately

You can often encounter a situation where an employee’s job description is simply rewritten into an employment contract. The employer is reinsured and complies with Art. 57 of labor legislation, but this is not entirely correct.

With this approach, the instruction is part of the employment contract, which means that changes to it can only be made with the consent of the employee (it is given in writing), since they will directly relate to a change in the labor function - this is confirmed by Article 74 of the Labor Code of the Russian Federation. When an employee does not agree, nothing can be changed and it is also not possible to fire him.

In order to reserve the opportunity to make adjustments to the employee’s duties and at the same time comply with the requirements of labor legislation, the employer can reflect in the contract only general labor functions, which can be found in the professional standard. They are indicated depending on the level of qualification of the specialist. But in the job description, drawn up in a separate document, the employer already indicates the algorithm of actions for a specific employee.

How to distinguish a function from an action? It's actually simple. A labor function is a task, and actions are specific operations, which together constitute an algorithm for its implementation.

Meaning of the term "qualification"

The concept of a professional standard, which appeared in 2012, is closely related to qualifications and their levels. Essentially, it includes a number of characteristics that employees must possess in order to perform the duties included in the employment contract. The labor function of an employee is largely determined by his abilities, education and training. Qualification is the knowledge, skills, professional skills and experience of a person that allow him to perform specific tasks. This also includes the level of his professionalism.

We can say that it is qualifications that influence what an employee’s salary will be, whether he will be subject to a staff reduction program, whether he will receive a promotion or training opportunity. The successful implementation of each function of the organization depends on the competence of team members. If data on the education received, previously performed work and the achievements of a subordinate cannot be illustrated by various documents (diploma, certificate, record of promotion, letter of recommendation), then a reliable determination of the qualification level becomes a difficult task.

In fact, a decision that a person is capable of performing a specific job function can only be made on the basis of certification results. An important condition for its implementation is a properly designed program for testing knowledge and skills, as well as an adequate assessment of the data.

Transformation of the employment contract

The general procedure for amending employment contracts is established by Article 74 of the labor legislation. At the initiative of the employer (in other words, unilaterally), this can happen in the event of a change in working conditions of an organizational and technological nature. It is this provision that should be followed when implementing an effective contract.

When introduced, key changes will affect the terms of the employment contract relating to remuneration and employee responsibilities. In this case, the employer is obliged to indicate the reasons for the adjustment and justify them as inevitable. It is necessary to refer to changes in the conditions regarding remuneration and the Program approved by the Government of the Russian Federation, which established clear criteria and performance indicators.

Definition, types and functions of an employment contract

The main and most important document regulating the relationship between employee and employer is the employment contract. Its terms form the essence of the document. The functions of an employment contract are to formulate the rights and obligations of the parties, the content of the employee’s activities, specifying remuneration for the correct performance of work, as well as penalties for violating the agreed rules. This document is drawn up in writing. One copy belongs to the employer, the second remains with the employee. A person can be allowed to perform work activities only after completing and signing the document.

The following types of employment contracts are distinguished:

1. Prisoner for a specified period.
2. Describing an employment relationship lasting up to five years (unless another period is specified in federal law).
3. Indefinite.

Contracts that were concluded for a certain period of time, but were not terminated, are considered as unlimited. This is done in cases where the employer has entered into an employment contract for a limited period without sufficient grounds (important for controversial situations or legal proceedings).

How to change a job description?

Can an employer change his job description without the employee’s consent? The answer is yes. It is a local normative act. It is not the employee’s labor function that is subject to adjustment, but his actions. The Labor Code of the Russian Federation does not prohibit this. In this case, there is no need to notify the employee 2 months in advance and obtain his consent to this procedure. It is enough just to familiarize him with the updated job description. However, it is important to remember that when adding new labor actions to it, it is necessary to ensure that they do not contradict and comply with the general labor functions specified in the contract. In practice, it often happens when, for example, a cleaner is given the duties of a janitor, as they say, “as a burden.” In this form, this situation is unacceptable.

If an employer wants to assign any new job functions to an employee that are not part of his professional standard, this will have to be done in a different way. The algorithm of actions is as follows. First, with the consent of the employee, he adds a general labor function from the second professional standard to the employment contract, and only then begins to develop a new job description. In this case, the employee will already have to meet the requirements of two professional standards.

The legislation allows for changes in the labor function; this right of the employer and employee is enshrined in Article 72 of the Labor Code of the Russian Federation. This action is formalized by transfer to another job, and it can be either temporary or permanent.

How to define a labor function in an employment contract - sample and practical advice

Determining an employee’s job function is an extremely important task for every employer or personnel specialist. This is primarily due to the fact that most of the standards of current labor legislation require the fulfillment of a number of requirements that are directly related to the employee’s function defined in the employment contract. In particular, these include the following features of the legal regulation of labor relations:

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• What is the difference between a collective agreement and an employment contract?
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• Terms of remuneration in an employment contract: sample 2021
• Go on maternity leave from the labor exchange
• Notice of extension of a fixed-term employment contract: sample 2021
• Notice of termination of a fixed-term employment contract: sample 2021

Working with personal data . The employer is strictly limited in its ability to process and request the employee’s personal data if it is not related to the performance of his job function.

• Changes in working conditions. The employer does not have the right to independently change the employee’s job function. He can ensure his temporary transfer to another job or permanent transfer - within the same territory and one labor function, if necessary. However, the employer does not have the right to change the job function on a permanent basis without the employee’s consent.
• Responsibilities of the worker. The main responsibility of an employee is the performance of his job function, and the employer cannot involve him in solving tasks that are not initially included in it, and the employee, accordingly, cannot be held responsible for failure to comply with such orders.

Accordingly, the employer should define the employee’s job function as specifically as possible. At the same time, the legislation does not oblige the full list of practical job responsibilities of the employee to be mentioned in the labor function. They may be regulated by other official documents. Therefore, the labor function can also determine simply the main area of ​​activity. For example, a sample labor function in an employment contract may look extremely laconic:

Carrying out construction, welding and installation work.

For some professions and jobs, the law imposes special requirements. In addition, the activities of many workers may be regulated by separate professional standards or qualification reference books, which define professions specifically according to their labor function. And if the legislation provides for certain benefits for performers of certain labor functions, the employer is obliged to provide them.

Change of work function for a while

The work function can be changed for a certain period of time. Thus, Article 72.2 of the labor legislation establishes that an employee can be transferred for a period of up to one year, or until the absent employee returns to another job.

In this case, mutual written consent to change the job function is required. There may not be any (additional) training for the new position. In any case, all aspects of such a translation are negotiated by the parties, and their consent is always required. The exception is situations where there has been an industrial accident, man-made or natural disaster and other exceptional cases that put the life and health of the population at risk. In this situation, a transfer can be completed without the employee’s consent, but the period should not exceed one month.

How to change the structural unit indicated in the employment contract with an employee

In practice, the organization has the right to abolish the department or other structural unit in which the employee worked, transferring his functions to another department or department or distributing them among several departments. An employee of a liquidated department can be assigned to a new department or division, which is assigned the functions previously performed by this employee. However, changing an employee’s job function at the initiative of the employer is unlawful.

Judicial practice: the question of who owns the initiative to dismiss

Thus, in one case, in connection with the reorganization of the bank, the management decided to transform the investor relations department into two departments: information and analytical and public relations. The employee, who headed this department before disbandment, was notified of changes to the contract concluded with her and was offered to take the position of head of the information and analytical department with a changed salary due to a decrease in the scope of duties. The employee did not agree with this proposal and stated that as a result of the dissolution of the department she led, her job function was changed, and the employer had no right to carry out such a transfer on its own initiative and without her consent.

The courts of first and cassation instances sided with the employer. However, the supervisory authority of the Moscow City Court supported the worker. Subsequently, the Presidium of the Supreme Court of the Russian Federation issued a resolution, according to which the dismissal of the employee was recognized as legal. The court concluded that as a result of the dissolution of the department and in accordance with the instructions for the employee’s new position, her job responsibilities were not changed, and the new position corresponded to her specialty and qualifications. The employee refused the offered position, which cannot be qualified as dismissal at the initiative of the employer (Resolution of the Presidium of the Armed Forces of the Russian Federation dated June 8, 2011 No. 12ПВ11).

Judicial practice: salary reduction

Due to the lack of planned results and low economic indicators of the retail department of the sales service, the employer decided to assign the functions of organizing retail sales and managing the retail department to the commercial director, subordinating the employees of the retail department to him. For these reasons, the functions of managing the department for organizing the sale of printed products through retail partners, conducting marketing research, developing projects for the sale of printed products, improving the sales network and other functions related to determining strategy and implementation were excluded from the job responsibilities of the director of the retail department (employee). retail sales. In the process of structural reorganization of the company, the employer approved a new staffing table, according to which the position occupied by the employee was set at a lower salary. The employee refused to work under the changed conditions and was dismissed at the initiative of management. Considering the dismissal to be unlawful, he went to court.

The court agreed with the company's actions. He found that the change in the employee’s remuneration was associated with a significant decrease in the scope of functions performed by the position of director of the retail department. The court indicated that the reduction in the scope of job responsibilities established in the employment contract was caused by a structural reorganization of the defendant and reassignment of the department. Thus, there were grounds for terminating the employment contract with the plaintiff at the initiative of the organization, taking into account compliance with other requirements provided for in Art. 74 of the Labor Code of the Russian Federation (decision of the Moscow City Court dated June 22, 2011 in case No. 33-18959).

It should be remembered that a change in job responsibilities at the initiative of the employer towards reduction, a reduction in the volume of work performed are not organizational or technological changes, but refer to the consequences of such changes. A reduction in the scope of work does not in itself indicate the possibility of applying Art. 74 of the Labor Code of the Russian Federation, if there have been no organizational or technological changes. If, when considering a legal dispute, it is established that in reality there were no such changes, the court may consider that there was a reduction in the number of employees.

Judicial practice: substitution of concepts

The employee filed a lawsuit to declare the dismissal illegal. She based her demands on the fact that as a result of the changes, the scope of her functions had increased and her salary had been reduced. Thus, the employer removed several positions from the staff, assigning their duties to other employees. The employee refused to continue working under the changed conditions, but she was not offered other positions, and then she was fired.

Satisfying the plaintiff’s demands for reinstatement, the court proceeded from the fact that in fact there was a reduction in the number of employees, and not a change in significant working conditions (determination of the Supreme Court of the Komi Republic dated 06.06.2011 No. 33-2948/2011).

The court took a similar position in another case.

The employee appealed to the State Labor Inspectorate with a complaint about the actions of her employer. She indicated that she was on maternity leave when the manager notified her about the closure of stores in her city, offering vacancies in stores located in other cities, and asked her to respond within two weeks about her consent or disagreement to continue working (the employer was an individual entrepreneur). If he did not receive a response, he reserved the right to terminate the employment relationship with the employee on his own initiative on the grounds provided for in paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.

The labor inspectorate came to the conclusion that the closure of the store was not an organizational change in working conditions, as a result of which it obliged the employer to cancel the order to dismiss the employee. The entrepreneur went to court with a demand to declare the inspection order illegal. The court did not support the plaintiff’s demands, obliging him to comply with the order in full (ruling of the Ryazan Regional Court dated December 28, 2011 No. 33-2512). Thus, the employer should take into account that making changes to the working conditions of employees cannot be a way to optimize their costs through staff reduction procedures.

Changing the employee’s job function on a permanent basis

Not a temporary, but a permanent change in the job function is also possible and can be caused by various kinds of circumstances: the initiative of the employee or employer, other objective reasons. Partly the same principles apply as in the previous case.

If the employer initiates a permanent transfer, he will have to obtain the employee’s consent. Registration is carried out according to Article 72.1 of the Labor Code of the Russian Federation. The exception is emergency situations.

The initiative can also come from the employee; moreover, in certain cases he can demand a transfer, then the parties must document this.

In addition, a change in labor function in this form may be caused by such an objective factor as a medical report. In all of the above cases, changes must be made to the employment contract.

approaches to establishing labor functions

In practice, there are diametrically opposed approaches to the content of the labor function.

The job description for a certain position (the content of the employment contract) either includes unreasonably broad powers of the employee (rights, duties and responsibilities) or narrows the range of his responsibilities as much as possible. Both are equally bad.

In the first case, the employer, as a rule, does not have the opportunity to oblige the employee to perform certain duties provided for in the job description (the terms of the employment contract), since the employee has the opportunity not to perform them under the pretext of “heavy workload.” Considering that labor standards are not carried out properly in all organizations, the employer, as a rule, is deprived of the opportunity to prove the validity of establishing such a large volume of duties for the position and the real possibility of performing them during the legally established working hours. Under such circumstances, the employee has the opportunity to evade the performance of his labor duties with impunity.

In the second case, they try to limit (narrow) the employee’s range of powers as much as possible. This, in turn, negatively affects labor management as a whole. For example, if necessary, the employer does not have a real opportunity to distribute (redistribute) labor responsibilities between employees at his own discretion.

Therefore, the employee’s labor function must be clearly formulated for a specific position provided for in the staffing table.

Does the transfer formalize the renaming of a position?

In practice, you can often encounter a situation where, for one reason or another, the title of a position changes. For example, there was an “OT engineer”, but became an “OT specialist” or “forwarding driver” - just “driver”.

As a rule, not only the title of the position is changed, but also the range of job responsibilities along the way. In this case, we are talking about the transfer of an employee.

If there is a change in position without changing the job function, the transfer to another job is not formalized. Nevertheless, even partial renaming should be regarded as an adjustment to the employment contract. Therefore, it is important to document everything. First of all, changes are made to the existing staffing table, then to the employment contract with the employee and his work book.

Professional standard: labor function and its essence

The content of the labor function described in the professional standard includes such elements as qualifying actions. This also includes skills, abilities and knowledge. Based on the fact that a professional standard implies what employees of an enterprise do in the workplace, it pays the greatest attention to the first element. It's about action. Knowledge of this feature allows us to correlate the requirements for the skills of a specialist with the content of his activity.

In fact, in the professional standard the labor function is defined with minimal detail. It leaves the decision to the employer to hire an employee with insufficient qualifications. With the consent of the parties, a subordinate who does not satisfy the employer on specific points of the professional standard may undergo training, paying for it independently (or at the expense of the employer).

Is it necessary to bring the job title in accordance with the professional standard?

There is no direct indication that it is the employer's responsibility to rename all existing positions in its staffing table in accordance with appropriate professional standards. However, if the organization plans to implement them one way or another, it would be advisable to do so. It is necessary to issue an order of appropriate content. All employees who are directly affected by them should be made aware of the upcoming changes. Please note that the law does not oblige the employer to immediately implement professional standards for all employees. The transition can be planned or gradual.

Amendments to the employment contract

To do this, it is necessary to obtain the consent of the employee (except for the cases specified in the Labor Code, when it is not required), and give a warning about them two months or more in advance.

If the employee refuses, the employer is obliged to offer him another position in the organization. If you refuse again, the contract is terminated with two weeks' severance pay.

Making changes to the instructions is another matter. It is not necessary to obtain the consent of the employee himself or to warn him such a long period of time. However, in this way it will not be possible to additionally assign responsibilities that are clearly not included in the main functions and competence - for this, the contract will also have to be changed.

Causes

Companies change their activities from time to time and reorganize the enterprise. This often impacts employee commitment. In such cases, it is recommended to change the employee’s job function. By and large, this is a formality. The following situations are possible.

Organizational and technical

If the worker does not agree to the new conditions, the director gives him the choice of a similar vacant position in the organization.
It all depends on the professional obligations of the vacancy. If the subordinate refused this offer, then the dismissal can be made unilaterally.

In a serious and difficult situation at an enterprise, when the boss is forced to resort to staff reduction, such decisions are made only with the approval of the bodies of the trade union, if there is one. One of the options for preserving jobs is adjustments to the staffing table. For example, reducing working hours.

Example. If the amended employment contract specifies a new workplace (office, workshop, equipment), then this is also considered a change in the labor function.

This information is governed by Art. 72.1 Labor Code of the Russian Federation.

The employer is obliged to notify the employee about future changes 2 months before the start of technological changes at the enterprise

Permanent work in another organization

This type is carried out either at the request of the employee or with his consent. When registering, you should be guided by Art. 77 of the Labor Code of the Russian Federation, where all steps, rights and obligations of the parties are clearly stated. On the T-8 application form filled out by the employee, the director of the company from which the person is leaving puts his signature and date.

Considering that each enterprise has its own Charter and its own accounting policies, the work obligations of the same position may differ slightly. Therefore, there is a change in work functions in the new contract for the new boss.

The director does not have the right to change the transfer date independently. This is agreed upon with the employee. If the dispute is not resolved, the boss refuses the transfer.

Changes in the company's activities

Such changes in labor functions are made when the company’s activities change, when the geographical location of the organization changes

, as well as in connection with
organizational and technical changes
in the field of activity. Thus, the job responsibilities that are prescribed in the cooperation agreement change. Accordingly, labor functions also change.

Temporary job

Work obligations may change if an employee is temporarily transferred

to another place of business. When replacing a colleague, job functions, even for a similar position, may change.

Example. Seller 1 had to sell potted and cut flowers, change water, and also make bouquets. And seller 2 was simply selling. If the first one goes on vacation, the second one, replacing him, takes on additional responsibilities. This lasts for the period of time for which seller 1 is on vacation.

Medical indications

If an employee has health problems and, according to a medical opinion, he cannot perform the relevant work functions, then the boss has the right to transfer him to another position or reduce his duties. Most often, the employee is demoted. But in any case, the employer is obliged to coordinate this point with the subordinate.

If the worker refuses a new activity, or there is no vacancy, the employment contract may be terminated. If medical conditions are temporary and a person can continue activities after a certain period of time, then leave without pay may be granted.

Wages may be paid if such conditions are specified in the additional agreement. These indications are regulated by Art. 77 Labor Code of the Russian Federation.

Example . A pregnant woman cannot work in a paint shop due to harmful activities. In such a case, to avoid a transfer, the employer may limit her responsibilities. Now, instead of working with equipment, she can control it. In this case, her position will be renamed with a change in labor functions, but without transfer to another workplace.

New job responsibilities

A change in an employee’s job function also implies a change in job responsibilities. But these concepts are somewhat different, so the title of the position is possible without changes in work activity.

However, work obligations differ from job responsibilities in that they are a broader concept. If functions are the main obligations of the profession, then official duties are an additional range of responsibilities. Since the position does not always correspond to the profession.

For example, a profession such as an accountant involves bookkeeping. This is a labor function. But the job responsibilities include:

• reception and preparation of primary documents;
• conducting financial activities of the enterprise;
• reflection of debits and credits on accounting accounts;
• prepares various accounting reports;
• calculates wages for employees.

But this applies to general accounting, since this profession is carried out in different directions. The same applies to other professions.

A change in work obligations implies a change in the terms of the employment contract. Confirmed by Federal Law No. 197.

Violation of the procedure for introducing changes entails their cancellation in court

Even with very real reasons for changing the employment contract, dismissal due to refusal to continue working under new conditions may be considered illegal due to the employer’s failure to comply with the dismissal procedure. Therefore, it is very important to pay attention to the nuances of dismissal if an employee refuses to work under changed conditions.

1. First of all, the employer decides to change the terms of the employment contract with a specific employee or group of employees. It is formalized by an order or direction of the company signed by the general director or another person whose competence includes making such decisions.
2. Based on this order, the personnel service prepares a notification to the employee about upcoming changes to the terms of the employment contract determined by the parties. The employee must be notified no later than two months in advance (Part 2 of Article 74 of the Labor Code of the Russian Federation). For an employer who is an individual, this period is two weeks (Article 306 of the Labor Code of the Russian Federation).
3. The employee must be familiarized with the notification against signature. Let us note once again that it should contain information not only about the nature of the changes, but also about their reasons. It is advisable to set a period in the notice during which the employee needs to make his decision about working under the new conditions.

Often in practice the question arises about the start time of the two-month period. The problem is that it is unclear from what date this period begins to be calculated - from the day the employee is given the notice or the next day after its receipt. We believe that Art. 14 of the Labor Code of the Russian Federation, according to which the period begins the next day after the calendar date that determines the occurrence of a legally significant event.

If the employee does not agree to work under the new conditions, the employer in writing offers him another vacant position or work that corresponds to the employee’s qualifications, or a vacant lower position or lower-paid work that he can perform taking into account his state of health (Part 3 of Article 74 Labor Code of the Russian Federation). In this case, the employer should offer all available vacancies in the area during the entire two-month notice period. Written proposals must indicate not only the names of positions, but also working conditions, wages, as well as other mandatory conditions provided for in Art. 57 of the Labor Code of the Russian Federation. Otherwise, the procedure may be considered to have been carried out in violation.

Judicial practice: non-compliance with the dismissal procedure

The workers went to court with a demand to recognize the dismissals under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation is illegal. In their opinion, the termination of employment contracts was accompanied by violations of the law.

The courts of first and cassation instances sided with the employer, but the Supreme Court of the Russian Federation overturned these decisions, citing the following. Since the notification of employees about organizational changes was made before the publication of the corresponding resolution of the head of the administration of the municipal district on the structural reorganization of the hospital where the dismissed employees worked, the two-month period for notifying employees about the upcoming dismissal was violated. The court also found that when offering another job, the employer did not stipulate all essential working conditions. In addition, after the order to introduce changes was issued, employees continued to perform their previous duties to the same extent for two months. The court indicated that the positions offered by the employer and the nature of the work in these positions are identical and correspond to the work of the plaintiffs before the change in the structure of the organization. No evidence was presented to confirm that the change in the terms of the employment contract determined by the parties, which was a consequence of changes in organizational working conditions, and also that this did not worsen the situation of the employees. Thus, the decisions of the lower courts were canceled, and the case was sent for a new consideration (decision of the Supreme Court of the Russian Federation of October 31, 2008 No. 25-B08-9).

It is important for the employer to prove that organizational innovations were sufficient reasons for changing working conditions.

Opinion

Ivan Viktorovich Berdinskikh, lawyer at the Moscow office of the international law firm Baker & McKenzie

Established judicial practice allows us to conclude that the most common reason for reinstatement of employees dismissed under Part 4 of Art. 74 of the Labor Code of the Russian Federation with reference to clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, is the recognition of organizational or technological changes in working conditions as insufficient to justify changes in the terms of the employment contract determined by the parties and the implementation of the procedures provided for in Art. 74 Code. It is all the more interesting to analyze what organizational changes are recognized by the courts as sufficient and not violating the rights of workers, as well as how these changes should be documented. Changing the operating mode. The Moscow City Court recognized the legality of the dismissal of an employee who refused to work according to the new work schedule (ruling dated March 2, 2012 in case No. 33-6543). The change in the work schedule of the department in which the employee was employed was caused by the need to serve visitors to the organization on weekends and was documented by an order on a new work schedule for this department. At the same time, the possibility of establishing an appropriate work schedule was also provided for by the employer in the Internal Labor Regulations. Reorganization of the employer, resulting in a change in the employee’s job responsibilities. The Astrakhan Regional Court recognized as legal the dismissal of an employee who refused to work with changed job responsibilities (appeal ruling dated June 27, 2012 in case No. 33-1932). The change in job responsibilities without the employee’s consent was due to the employer’s decision to reorganize the structural unit in which the employee worked. The reorganization was formalized as follows: an order was issued to revise the existing regulations on the structural unit; new regulations and new job descriptions for department employees were approved; Changes have been made to the organization's staffing table. It should be remembered that a collective agreement, agreements and employment contracts may also provide for the mandatory offer of vacancies in other areas (Part 3 of Article 74 of the Labor Code of the Russian Federation). It is also important to take into account that when offering another job, the employer does not have the right to conduct interviews to test the employee’s business qualities or set a probationary period, since the proposed vacancies must initially correspond to the specialist’s qualifications.

Judicial practice: assessing an employee’s competencies when laying off workers and offering other positions is illegal

The employee filed a lawsuit to recognize the dismissal order under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation is illegal, reinstatement at work, recovery of wages for forced absence, compensation for moral damage. The company decided to introduce changes as a result of a sharp deterioration in financial performance. At the same time, individual employees, by decision of the head of the enterprise, could be set salaries in the amount of 10 thousand rubles. up to the minimum wage. The specialist was notified that his position had been reduced and he was offered other positions. He agreed to fill one of the proposed positions, the head of the relevant department interviewed him, after which the invitation was not made. As a result, the employer fired him on the grounds provided for in clause 7, part 1, art. 77 Labor Code of the Russian Federation.

The court did not support the employer’s position, since conducting an interview contradicts the meaning of Art. 74 Labor Code of the Russian Federation. The employee was reinstated at work, he was paid wages for the period of forced absence, compensation for moral damage (decision of the Moscow City Court dated July 1, 2010 in case No. 33-19700).

Employee consent

In any situation, the manager must warn the employee about upcoming changes in his work responsibilities. Notification must be in writing. If the employee does not agree with the conditions, the boss offers vacant positions in the company. In some cases, it is possible to offer a job in another territory, that is, in another branch. But this is additionally stipulated in the employment contract.

If the employee refuses the free position, then the boss has the right, following Art. 77 of the Labor Code of the Russian Federation, fire him.